Subscription Agreement

Below is the text of our Subscription Agreement – the basis upon which we do business with our customers.

IMPROVED APPS LTD – SUBSCRIPTION AGREEMENT

NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT” AND/OR BY USING ALL OR ANY PORTION OF THE APPLICATION(S), THE LEGAL ENTITY USING THE APPLICATION(S) OR ON WHOSE BEHALF THE APPLICATION(S) IS USED (“CUSTOMER”) ACCEPTS THE FOLLOWING TERMS FROM IMPROVED APPS LIMITED OF QUATRO HOUSE, LYON WAY, FRIMLEY ROAD, CAMBERLEY, SURREY, GU16 7ER (“IMPROVED APPS”).

THE CUSTOMER AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE CUSTOMER AGREES THAT IT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF THE CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, IT SHALL NOT USE THE APPLICATION(S). ON CLICKING “I ACCEPT” OR ON ANY USE OF THIS APPLICATION(S) BY OR ON BEHALF OF THE CUSTOMER THE TERMS OF THIS SUBSCRIPTION AGREEMENT SHALL BE DEEMED TO HAVE BEEN AGREED BY THE CUSTOMER.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 1st, 2017. It is effective between You and Us as of the date of You accepting this Agreement.

1. DEFINITIONS

“Annual Escalation Cap” means the restriction on annual increase applied to the subscription agreement.

“Application(s)” means the Improved Apps applications more particularly described in the Order(s).

“Beta Services” (also occasionally referred to as ‘experimental features’) means services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

“Confidential Information” means information that is designated as confidential by the disclosing party in writing or relates to the business affairs, developments, trade secrets, know-how, personnel, customers or suppliers of the disclosing party.

“Current Subscription Period” means the period in respect of which the most recent Subscription Fee has been paid.

“Documentation” means the electronic information supplied with the Application(s), if any. “Effective Date” means the date of first use of the Application(s) on the Platform by the Customer.

“Order” means an online, electronic or written order for the Application(s) submitted by the Customer to Improved Apps and accepted by Improved Apps in writing or electronically.

“Permitted Number” means the number of unique users by Salesforce.com license type for which the Customer is permitted to use the Application(s) as set out in the Order, as may be increased from time to time with the agreement in writing or by email from Improved Apps.

“Platform” means the Customer’s combination of the hardware and software comprising the Salesforce.com technology platform licensed from Salesforce.com as may be modified or amended from time to time by Salesforce.com and/or the Customer.

“Releases” means the upgrades to the Application(s) released from time to time at Improved Apps’ discretion and made generally available to Improved Apps’ licensees.

“Salesforce.com” means salesforce.com Sarl, a limited liability company having its registered office at Ch. De La Dent d’Oche, CH1024 Ecublens, Switzerland and its subsidiary and affiliated companies.

“Selected Features” means the features of the Application(s) that the Customer has opted to use as set out in the Order(s).

“Subscription Fee” means the annual Subscription Fee payable by Customer in respect of the use of the Application(s), as specified in an invoice issued by Improved Apps.

“Subscription Period” means the minimum period set out in the Order (which, for the avoidance of doubt shall not be less than one (1) year), plus any extensions thereto.

“Subscription Expiry Date” means the date upon which Subscription for the Applications expires.

“System Administrator” means a suitably experienced and qualified employee of the Customer notified by Customer to Improved Apps by email or in writing from time to time as being responsible for the implementation, administration and maintenance of the Application(s) within Customer organization.

“Technical Support” means the provision of technical support by Improved Apps in respect of the use and operation of the Application(s) to a System Administrator available during the hours of 9:00 to 17:30 UK local time, Monday to Friday excluding all bank and public holidays via email to support@improvedapps.com.

“Working Days” means Monday to Friday, excluding United Kingdom bank and public holidays.

2. GRANT OF RIGHTS; RESTRICTIONS

2.1 Subject to all the terms and conditions of this Subscription Agreement, Improved Apps hereby grants Customer an annually renewable, worldwide, nonexclusive, non-transferable licence to install and use the Selected Features of the Application(s) for the Permitted Number.

2.2 Except as expressly permitted in this Subscription Agreement, Customer shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Application(s) (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Application(s) to source code form; (iii) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Application(s) or Customer’s right to use the Application(s); (iv) remove or modify any copyright, trademark, or other proprietary notices of Improved Apps affixed to the media containing the Application(s) or contained within the Application(s); or (v) use the Application(s) in any manner not expressly authorised by this Subscription Agreement.

2.3 Customer agrees, subject to reasonable prior notice, to give Improved Apps such access and assistance to Customer’s systems as may be necessary to confirm the Customer has used only the Selected Features and that the number of users does not exceed the Permitted Number.

2.4 In the event that the Customer wishes to add additional Applications or Selected Features or increase the Permitted Number (“Additional Apps”) during a Current Subscription Year, it shall do so using an Order and the Subscription Fees for such Additional Apps shall be prorated to reflect the unexpired duration of the Current Subscription Year.

2.5 Improved Apps shall, in its sole discretion, notify Customer in writing or by email if it is eligible for any trial, evaluation or free period of use of the Application(s) (“Trial Period”) and such Trial Period shall automatically terminate at the end of the period notified to the Customer. In the event that the Customer does not pay a Subscription Fee prior the end of the Trial Period, this Agreement shall terminate forthwith. The rights and obligations in clauses 3 and 5 shall be disapplied and not be enforceable for the duration of any Trial Period.

3. SUPPORT AND RELEASES

3.1 Improved Apps may provide Releases from time to time, such Releases to be provided as downloads from the Salesforce.com AppExchange website and shall be deemed to be included in the definition of Application(s) in this Agreement.

3.2 The System Administrator may request Technical Support in respect of the Application(s). Such Technical Support may be provided by telephone or email, screen-share, webinar, Customer-permitted support login or at the Customer’s premises at Improved Apps’ sole discretion on a case-by-case basis.
3.3 On receipt of a Technical Support query from the System Administrator, Improved Apps shall use reasonable endeavours to respond to such query within 2 Working Days.

4. PROPRIETARY RIGHTS

4.1 Improved Apps has sole and exclusive ownership of all rights, title, and interest in and to the Application(s), including all copyright and any other intellectual property rights therein. This Subscription Agreement conveys a limited licence to use the Application(s) and shall not be construed to convey title to or ownership of the Application(s) to Customer. All rights in and to the Application(s) not expressly granted to Customer are reserved by Improved Apps.

5. SUBSCRIPTION FEE

5.1 In consideration for the annual licence to use the Application(s) on the Platform granted to Customer hereunder, Customer shall pay Improved Apps the non-refundable Subscription Fee annually in advance. Such Subscription Fee is exclusive of VAT or other sales tax which, if applicable, shall be payable by the Customer.

5.2 Without prejudice to the provisions of clause 2.4, in the event that the Customer has, during any Subscription Period, used any features of the Application(s) other than the Selected Features, or in the event that the number of users has, during any Subscription Period, exceeded the Permitted Number, Improved Apps shall be entitled to charge the Customer such additional Subscription Fees as would have been payable for such additional features and/or number of users with effect from the first day of the relevant Subscription Period.

5.3 In the event that such Subscription Fee is not paid in accordance with the provisions herein then on notice to Customer, Improved Apps may terminate this Agreement or suspend the provision of the Application(s) on the Platform and, in the event of termination the provisions of clause 6.3 shall take effect.

5.4 If any applicable law requires Customer to withhold amounts from any payments to Improved Apps hereunder, (i) Customer shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Improved Apps with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Improved Apps receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Improved Apps would have received and retained in the absence of such required deduction or withholding.

5.5 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly.

6. TERM AND TERMINATION

6.1 This Subscription Agreement shall commence on the Effective Date and continue in effect (as per 6.2) for consecutive Subscription Periods, unless and until terminated in accordance with Clause 2.5, 5.3 or clause 6.3.

6.2 Either party needs to notify the other in writing of its election to terminate Subscription Agreement for any Improved Apps Applications at least ninety (90) days prior to the current Subscription Expiry Date.

6.3 This Subscription Agreement will automatically renew for a consecutive Subscription Period of 12 months beyond the current Subscription Expiration Date unless terminated in accordance with 6.2 or 6.4. Such renewal shall be for the same Permitted Users as the current Subscription Agreement.

6.4 The automatically renewed agreement shall have an annual uplift applied. This will be subject to an Annual Escalation Cap that will restrict increases to either; the local RPI, the annual increase applied by Salesforce.com to your license Edition or 2.5%, whichever is greater.

6.5 If either party breaches this Subscription Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice, this Subscription Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).

6.6 Upon any termination of this Subscription Agreement, (a) the rights and licences granted to Customer herein shall terminate; (b) Customer shall cease all use of the Application(s); and (c) Improved Apps may take all necessary steps to disable the use of the Application(s) by Customer. Clauses 1, 4, 5 (to the extent of unpaid Subscription Fees), 7.6 and 8 shall survive any termination of this Subscription Agreement.

7. WARRANTIES, INDEMNITY AND LIABILITY

7.1 Improved Apps warrants that the Customer’s use of the Application(s) in accordance with the terms of this Subscription Agreement shall not infringe any third party intellectual property rights. In the event that any third party brings a claim against the Customer that the use of the Application(s) in accordance with the terms of this Subscription Agreement infringes such third party’s intellectual property rights (“Claim”), Improved Apps shall indemnify Customer against any payments that Customer has to make to such third party in respect of the Claim provided that:

(a) The Customer gives prompt written notice to Improved Apps of any such Claim and grants Improved Apps the full authority to proceed as contemplated herein;

(b) Improved Apps has exclusive right to defend at its expense any such Claim and to make settlements thereof at its own discretion;

(d) Customer gives such assistance and information as Improved Apps may reasonably require in connection with the investigation, defence or settlement of such Claims.

7.2 Improved Apps warrants that, on the Effective Date, the Application(s) will operate on the Platform in accordance with the Documentation. The Customer’s sole remedy for a breach of such warranty shall be limited to a refund of the initial Subscription Fee provided always that Customer notifies Improved Apps of such breach of warranty within five (5) Working Days of the Effective Date.

7.3 The Customer hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Application(s), and (ii) use the Application(s) only for lawful purposes and in accordance with the terms of this Subscription Agreement.

7.4 The warranties set forth in this clause 7 are exclusive and in lieu of all other warranties, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed.

7.5 Customer’s sole remedy with respect to any claims arising out of this subscription agreement shall be limited in the aggregate to the monies paid by customer to Improved Apps under this subscription agreement during the twelve (12) month period preceding the event giving rise to such liability.

7.6 In no event shall Improved Apps be liable for any special, indirect, incidental, or consequential damages, or for any loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products by customer even if advised of the possibility of such damages. Additionally, customer acknowledges that whilst the application(s) may be used in combination with third party application(s), Improved Apps bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the application(s) to integrate with customer or third party application(s). Notwithstanding any other provision herein, Improved apps shall not be liable to customer in the event that the application(s) ceases to function either partly or in its entirety due to an amendment or modification to the Platform, or for any reason outside of Improved Apps’ control. Customer’s sole remedy, in such circumstances, shall be limited to terminating this agreement by notice in writing and receiving a pro-rata refund of the subscription fees paid in advance for the period after the date of termination.

8. BETA SERVICES

From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

9. PAYMENT AND TAXES.

9.1 Subscription Fees: Customer will pay Improved Apps (i) for the first Subscription Period, the amount provided for in the applicable Order Form or Invoice as the “Total Price”; and (ii) for each Subscription Period subsequent to the first Subscription Period, an amount invoiced by Improved Apps, which amount will not increase by more than any “Annual Escalation Percentage Cap” over the fee that Customer was obligated to pay to Improved Apps in the immediately preceding Subscription Period. Payment of all subscription fees is due within thirty (30) days of the date of invoice and is non-refundable.
For subsequent Subscription Periods, Improved Apps will invoice Licensee up to sixty (60) days in advance of the end of the Subscription Period, with payment due prior to the first day of the subsequent Subscription Period.

9.2 Taxes. Customer is responsible for paying any applicable value added tax (“VAT”) relating to this Subscription Agreement at the prevailing rate. Improved Apps will invoice Licensee for applicable VAT amounts (if any) and such invoices are due upon Customer’s receipt thereof.

9.3 Late Payment Charges. Customer will pay each Improved Apps invoice within thirty (30) days of the date of invoice. Improved Apps reserves the right, after notice, to charge the customer an additional 3% per month on past due amounts owing from Customer, that are not the subject of a bona fide dispute, on a day-to-day basis from the due date pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 as amended.

9.4 Cheque Payment Surcharge. A surcharge of 2% will be levied on all payments made with cheques.

10. CONFIDENTIALITY

10.1 Each Party shall keep in strict confidence all Confidential Information relating to the other party which that party may obtain throughout the duration of the Subscription Agreement. This shall also include any information disclosed by or on behalf of either party by any means whatsoever in respect of and relating to this Agreement.

10.2 Confidential Information shall not include any information that was public domain at the time of disclosure or becomes so subsequently.

10.3 The Parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of five (5) years following any termination of this Agreement.

11. GENERAL

11.1 Customer shall not assign this Subscription Agreement, in whole or in part, without the written consent of Improved Apps.

11.2 Customer consents to the use by Improved Apps of Customer’s name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between Customer and Improved Apps.

11.3 This Subscription Agreement and its performance shall be governed by and construed in accordance with and the parties hereby submit to the exclusive jurisdiction of the laws of England and Wales.

11.4 Customer agrees that because of the unique nature of the Application(s) and Improved Apps’ proprietary rights therein, a demonstrated breach of this Subscription Agreement by Customer would irreparably harm Improved Apps and monetary damages would be inadequate compensation. Therefore, Customer agrees that Improved Apps shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Subscription Agreement.

11.5 If any provision of this Subscription Agreement is declared void, illegal, or unenforceable, the remainder of this Subscription Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

11.6 Any failure by any party to this Subscription Agreement to enforce at any time any term or condition under this Subscription Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Subscription Agreement.

11.7 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.

11.8 This Subscription Agreement, together with all written or emailed acceptances of Orders by Improved Apps and all agreements between the parties in writing or by email regarding increases in the Permitted Number and/or additions to the Selected Features (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by Customer shall supersede this Subscription Agreement.

11.9 Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against Improved Apps and such third parties shall not be entitled to enforce any term of this Agreement against Improved Apps.

If you have any questions regarding this Subscription Agreement or if you wish to discuss the terms and conditions contained herein, please contact:
Improved Apps Limited, Quatro House, Lyon Way, Frimley Road, Camberley, Surrey GU16 7ER.