1. License Grant & Restrictions
1.1. Subscription to the Service. Subject to the terms of this Agreement, Partner hereby grants to You a non-sublicensable, non-transferable, non-exclusive subscription for Your use of the Conga Service by the number of Users (and/or up to the volume of Service Events) as specified in an associated quote or invoice, in accordance with the Conga Documentation and solely for Your internal business purposes. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former users who no longer require ongoing use of the Service. Conga and its licensors reserve all rights not expressly granted to You in this MTU. You may allow Your Affiliates access and use of the Service. You are solely liable and responsible for Your Affiliates’ access and use of the Conga Service and compliance with the terms and conditions of this Agreement.
1.2. Additional Use. If You wish to add additional Users or increase the number of authorized Service Events (“Additional Use”), You should contact Partner and Partner shall make the Conga Service available for the Additional Use on the terms and conditions set forth in this Agreement. With respect to Additional Use: (i) the term of any additional Users’ access to the Conga Service will be coterminous with the preexisting subscription term (either initial term or renewal term), and (ii) You will be responsible for any additional fees for any Additional Use exceeding the authorized number of Users or Service Events.
1.3. Restrictions. You shall not (i) license, sublicense, sell, resell, use as a service bureau, or otherwise use the Conga Service for a third party’s benefit unless such use has been authorized by Conga; (ii) transfer, assign, distribute or otherwise commercially exploit or make the Conga Service, Conga’s System or Content available to any third party not authorized by Conga; (iii) modify or make derivative works based upon the Conga Service or the Content; (iv) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (v) reverse engineer or decompile the Service or Conga System; (vi) interfere with or make use of the Conga Service in any manner not consistent with the Conga Documentation, or (vii) access the Conga Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
2. Your Responsibilities
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 Conga Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Conga Service, and will notify Partner promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Partner immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by You or Your Users; and (iii) not impersonate another Conga Service user or provide false identity information to gain access to or use the Conga Service. You will not attempt to or use Your access to the Conga Service to knowingly interfere with or disrupt the integrity or performance of the Conga Service or the data contained therein.
3. Security; Customer Data
3.1. Processing of Data. You acknowledge and agree that with each use of the Conga Service initiated by your salesforce.com authenticated Users the Conga Service will access Your salesforce.com account to retrieve, manipulate, process and modify Customer Data based on Your configuration of the Service (“Process”) and You expressly consent to such access solely as is necessary to provide the Conga Service or Support Services. If the Conga Service cannot for any reason access Your salesforce.com account, Conga will be excused from any nonperformance of the Conga Service. You acknowledge that to provide the Conga Service, Customer Data leaves the salesforce.com system. Salesforce.com is not responsible for Customer Data when it is outside of the salesforce.com system.
3.2. Security. Conga has implemented Appropriate Security Measures based upon industry best practices and feedback from annual third-party audits. Audit reviews and summary results and any recommended action items will be made available upon written request by You. Conga maintains the Conga Service (space, power, physical security, environmentals) with leading, world-class hosting providers. Conga will reasonably cooperate with You to obtain certification documentation (SOC2/ISO) from hosting providers upon request. All access and interaction between the Conga Service and Your salesforce.com account are managed exclusively by You through Your salesforce.com administration and security settings. Conga does not control, and has no responsibility or liability for, security issues caused by the salesforce.com Service.
3.3. Customer Data. You are solely responsible for Customer Data and Customer Templates including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of the foregoing, and obtaining any Intellectual Property Rights ownership or right to use the foregoing. You will not provide, post or transmit any Customer Data or Customer Templates that: (a) infringe or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; or (b) contain any viruses or programming routines, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data or personal information. Conga may take remedial action, including immediate suspension of Your access to the Service, if Your configuration of the Service, Customer Data or Customer Templates violates Section 3.3.
4. Configuration, Third Party Technology or Services.
You acknowledge that the Conga Service is dependent on Your proper configuration of Conga solutions, the availability of and proper performance of third party services, software, and Internet technology, including salesforce.com, and Conga is not liable for performance issues or downtime of the Conga Service to the extent caused by such factors.
5. Intellectual Property Ownership
5.1. Conga. Conga and its licensors own all rights, title and interest, including all related Intellectual Property Rights, in and to the Conga System, the Content and the Conga Service, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Conga Service. The Conga name, the Conga logo, and the product names associated with the Service are trademarks of Conga or third parties.
5.2. Customer. You retain all right, title and interest in and to the Customer Data. You grant to Conga all necessary licenses and rights in and to Customer Data solely as necessary for Conga to provide the Service to You or as required by law. Conga will not knowingly use or access any Customer Data except as necessary to provide the Conga Service or Support Services.
6. Suspension; Termination for Cause
If You are in breach of any terms and conditions of this MTU, Conga may suspend Your access to and use of the Conga Service until You have cured the breach.
7. Representations & Warranties
Data Warranty. You represent and warrant that You own or have obtained all rights, consents, permissions, or licenses necessary to allow the Conga Service access to, or possession, manipulation, processing, or use of the Customer Data and User Details.
8. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 CONGA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE CONGA SERVICE OR ANY CONTENT, AND THE CONGA SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CONGA AND ITS LICENSORS.
9.1. Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”).
9.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section 9.2. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
9.3. Exceptions. The Receiving Party’s obligations under Section 9.2 with respect to any Confidential Information of the Disclosing Party will not apply if such information: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Disclosure pursuant to Section 9.3(iii) shall not render Confidential Information as non-confidential or remove such Confidential Information from the obligations of the confidentiality obligations set forth in this Section 9.
9.4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 9.4.
10. Partner Implementation
In the event that Partner ceases business and/or provision of the Partner Implementation or is otherwise in material breach of this Agreement, Conga is under no obligation to provide the Partner Implementation, to refund to Customer any fees paid by Customer to Partner, or to assume the relationship with Customer. Conga has no liability for the Partner Implementation or for its continued availability.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS SUPPLIERS MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. LIMITATION OF LIABILITY
Partner disclaims all liability and responsibility on behalf of its suppliers and vendors, including Conga.
You shall indemnify and hold Conga, 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 a claim arising from or related to Conga’s access to, or possession, manipulation, processing, or use of the Customer Data or User Details as is necessary to provide the Conga Service.
14. SUSPENSION OF CONGA SERVICE ACCESS
In the event that (i) Customer is in breach of this MTU, Conga may suspend its access to and use of the Conga Service immediately without notice if you are using the Conga Service in any manner that Conga, in good faith and in its sole discretion, believes is or may be degrading or disrupting to the Conga Service, or (ii) Partner is in breach of its obligations to Conga, then in Conga reserves the right to suspend or terminate Customer’s access or use of the Conga Service if the breach is not cured within 10 days of receiving notice. Conga is an intended third-party beneficiary of this MTU.
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16. Definitions As used in this MTU the following terms have these meanings:
“Affiliate” means any entity (now existing or hereafter formed or acquired), which, directly or through one or more intermediaries, controls, is controlled by, or is under common control with, another entity. Ownership of fifty percent (50%) or more of the voting stock, membership interests, partnership interests, or other equity of an entity shall be deemed to be in control over such entity.
“Appropriate Security Measures” means commercially reasonable technical, physical and procedural controls to (i) protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties, and unauthorized access by employees or contractors employed by Conga, and (ii) prevent the introduction of Malicious Code into the Conga Service and Content.
“Conga Documentation” means Conga’s published documentation, knowledge base articles and other content, and technotes that are generally made available by Conga to all customers, including without limitation the materials located at www.congamerge.com/support.
“Conga System” means the hardware, software, network equipment, and other technology used by Conga to deliver the Conga Service, and any other of Conga’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 Conga in providing the Conga Service.
“Content” means the visual information, documents, software, products and services contained or made available to You in the course of using the Conga Service, other than Customer Data.
“Customer Data” means any information (including without limitation personally identifiable information) provided, made available, or submitted by You to the Conga Service or retrieved by the Conga Service from Your salesforce.com account other than User Details.
“Customer Template” means a Customer-created template uploaded to the salesforce.com Service by You and intended for use with the Conga Service.
“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.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Partner” means Xactium Ltd incorporated and registered in England and Wales (company registration number 04683891) whose registered office address is at 28 Kenwood Park Road, Sheffield, S7 1NF;
“salesforce.com Service” means the service provided by salesforce.com to which You must be a subscriber in order to obtain the Service.
“Service Event” means (i) the execution of a single Conga Composer URL triggered via link or button, Conga Workflow, Conga Conductor, or any programmatic means, (ii) the generation of any Letter, Label or Envelope output file from Conga Mail Merge containing one or more Letters, Labels or Envelopes, or (iii) the scheduled execution of an individual Conga Courier Schedule or Conga Conductor, regardless of whether any output file is distributed.
“User(s)” means Your named employees, representatives, consultants, contractors, partners, or agents who are authorized to use the Conga Service by You through the Salesforce LMA (License Management Application) or the “User Management” facility of the Conga Service.
“User Details” means basic information collected by Conga about Your Salesforce.com users’ authorized by You to use the Conga Service which is used for subscription management, activity logging, and technical support purposes.