Software Subscription Services Agreement
This Software Subscription Services Agreement (the “Agreement”) is incorporated into the Order Form between Customer and SalesFlowIQ. Customer and SalesFlowIQ may each be referred to individually as a “Party” and together as the “Parties.”
1. Subscription License.
1.1 License. SalesFlowIQ grants the Customer a license to access and use the SalesFlowIQ software and associated documentation (“Software”) described in the Order Form during the Term of this Agreement. SalesFlowIQ will perform the services described in this Agreement. The right of Customer to use the Software is for Customer’s internal use only. Only Customer’s employees and necessary contractors acting in the proper scope of their services to Customer may access or use the Software. The Software will be hosted at and operated from a third-party data center that meets industry standard certifications or processes for data security.
1.2 Restrictions. Customer shall not remove, edit, alter, abridge or otherwise change in any manner any SalesFlowIQ Intellectual Property notices. Customer may not, and may not permit others to adapt, modify, reverse engineer, decompile, or disassemble, in whole or in part, any of the Software or reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the Software or create derivative works from the Software.
2. Fees, Installation Charges, and Taxes.
2.1 Subscription Fees. The subscription fees for the use of the Software are set forth on the Order Form. Subsequent orders shall require a new Order Form. Any customized interfaces or other special requests will be separately agreed by the Parties if not set forth in the Order Form.
2.2 Configuration, Installation and Services Fees. Customer shall also pay for setup, configuration and installation of Software and any other services requested by Customer as described in the Order Form.
2.3 Taxes; Currency. Customer is additionally liable for any applicable federal, state, or local taxes (exclusive of income or gross receipts taxes properly payable by SalesFlowIQ) and other fees or assessments incurred as a result of the use of the Software by Customer. All Fees listed shall be interpreted as being in United States dollars (USD), unless otherwise stated.
3. Payment and FEES.
Payment of Software subscription fees, installation fees, and other fees on the Order Form are payable when Customer completes the initial subscription and completes the checkout on the SalesFlowIQ website. All fees for renewals of subscriptions will be charged to the payment method that Customer sets up during the registration process through either an ACH transfer or by credit card (for which a 3% convenience fee will be added to the amount due). Fees for any renewal period will not exceed ten percent over the prior subscription fees. In the event payment is not made as specified in this Agreement, Customer shall pay interest at the rate of one and one-half percent (1.5%) per month (or the highest applicable legal rate, whichever is lower) on the outstanding overdue balance for each month or part thereof that such sum is overdue.
4. SOFTWARE SERVICES, SUPPORT, Exclusions and Disclaimer
4.1 Software Services. SalesFlowIQ shall provide the Software in a manner that conforms to its functional specifications and the applicable documentation. SalesFlowIQ's sole obligation and responsibility to Customer is to remedy, at no cost to Customer, any reported errors.
4.2 Support and Maintenance Services. Scope and Definitions. SalesFlowIQ shall provide reasonable maintenance and support services necessary to ensure that the Software operate in conformity with the Software functional specifications and the documentation. Support may be provided through diagnostic advice and assistance concerning the use and operation of the Software via telephone or other electronic means. Telephone support is intended to be used by a limited number of people designated by Customer to communicate with SalesFlowIQ about defects or problems. It is not a substitute for training of personnel by Customer, which is not included as part of support and maintenance services. Maintenance is generally provided Monday through Friday of each week (9 a.m. to 5 p.m., Central Time), except on federal recognized holidays
4.3 Exclusions; Maintenance Windows. Maintenance services do not include maintenance required by: (i) operator error or improper operation or use of the Software by Customer; (ii) modifications, repairs, or additions to the Software performed by persons other than SalesFlowIQ, or (iii) damage to Software by Customer's employees or third parties. Any maintenance service or related service or training other than the maintenance services described above will be charged at SalesFlowIQ’s then current billable rates. SalesFlowIQ may conduct updates, testing or other maintenance of the Software during which time the Software may not be available. Maintenance is generally done between 6 pm and 8 am Central Time.
4.4 DISCLAIMER. EXCEPT FOR THE OBLIGATIONS STATED IN THIS SECTION 4 OF THIS AGREEMENT, SALESFLOWIQ DISCLAIMS AND CUSTOMER WAIVES ALL WARRANTIES ON THE SOFTWARE FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND PROVIDES THE SOFTWARE AND SERVICES “AS IS” AND “WITH ALL FAULTS.”
5. Training.
SalesFlowIQ shall provide training in the operation and maintenance of the Software as described in the Order Form. Customer may request additional training time and/or additional personnel to be trained, provided that any such additional training shall be chargeable to Customer at SalesFlowIQ’s then current fee for the requested training, plus reasonable travel expenses if such training occurs anywhere other than SalesFlowIQ’s facilities.
6. Restrictions Upon Disclosure of Confidential Information.
6.1 Confidential Information. All information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information includes Customer Data; SalesFlowIQ Confidential Information includes the Software and associated services; and Confidential Information of each party includes the terms and conditions of this Agreement and all attached Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by Recipient.
6.2 Protection. Recipient shall use commercially reasonable care, but in no event less than the same degree of care it uses to protect its own most confidential and proprietary information, to prevent the unauthorized use, disclosure, publication, or dissemination of Discloser’s Confidential Information. Recipient shall provide Discloser’s Confidential Information to its employees and necessary contractors only on a “need to know” basis, and always subject to the terms of this Agreement. Recipient agrees to accept and use Discloser’s Confidential Information solely in connection with Recipient’s participation in, and solely with respect to, this Agreement. Recipient shall inform its employees and necessary contractors of these confidentiality obligations and shall take such steps as may be reasonably requested by Discloser to prevent unauthorized disclosure, copying, or use of Discloser’s Confidential Information. Recipient acknowledges that, in the event of a breach by Recipient of its obligations under this section, in addition to any other right or remedy available to Discloser, at law or in equity, Discloser may suffer irreparable injury, and shall be entitled to seek preliminary and final injunctive relief (without bond except as otherwise required by applicable law) in order to prevent any further or other breach or any unauthorized use of Discloser’s Confidential Information. Recipient shall notify Discloser immediately upon discovery of any prohibited use or disclosure of any of Discloser’s Confidential Information or any other breach of these confidentiality requirements (including by any third parties), and shall fully cooperate with Discloser to assist Discloser in regaining possession of its Confidential Information and to prevent further unauthorized use or disclosure of the same.
6.3 Limited Disclosure. Recipient may disclose Confidential Information of Discloser if and to the extent required by any judicial or administrative governmental request, requirement, or order, provided that Recipient shall take reasonable steps to provide Discloser sufficient prior notice in order to enable Discloser to contest such request, requirement, or order. Recipient shall, except as otherwise expressly provided by the terms of this Agreement, return all tangible Discloser Confidential Information, including, without limitation, all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser immediately upon Discloser’s request.
6.4 Ownership. All Discloser Confidential Information, including, without limitation, any and all adaptations, enhancements, improvements, modifications, revisions, or translations thereof created by Discloser or Recipient, shall be and remain the property of Discloser, and no license or other rights to such Confidential Information is granted or implied hereby. Except as otherwise expressly provided in this Agreement, all Discloser Confidential Information is provided “AS IS” and without any warranty, express, implied, or otherwise, regarding its accuracy or performance.
7. Intellectual Property Indemnity.
7.1 Indemnification of Intellectual Property Infringement Claims. In the event of any actual or threatened claims by a third party that the Software infringes upon intellectual property rights enforceable in the United States of such third party, SalesFlowIQ will indemnify Customer with respect to such claims. Customer shall immediately notify SalesFlowIQ of any such claim. The foregoing indemnity shall be ineffective if the Software has been modified, altered, or otherwise changed by Customer or on behalf of Customer by any person other than SalesFlowIQ. SalesFlowIQ will have no liability or obligation under this section if any claim of infringement is based upon: (i) the combination, operation, or use of the Software with any component other than SalesFlowIQ intellectual property, if such claim would have been avoided but for such combination, operation, or use; and/or, (ii) any derivative of any SalesFlowIQ intellectual property created by any person other than SalesFlowIQ. SalesFlowIQ shall have sole control over the selection of counsel and the defense and settlement of any legal proceeding or other claim and Customer shall provide SalesFlowIQ with all reasonable assistance in the defense of the same.
7.2 Remedy. In the event of a third party claim that the Software infringes the intellectual property rights of a third party, Customer shall have the following sole and exclusive remedy against SalesFlowIQ. SalesFlowIQ shall have the right at its sole election, to: (i) modify the allegedly infringing SalesFlowIQ Deliverables to be non-infringing, provided that such modification does not adversely impact the functionality of the Software in any material respect; (ii) obtain a license or other rights to enable Customer to continue to use the applicable Software as contemplated in this Agreement, or (iii) to terminate this Agreement and return to Customer any unearned fees paid by Customer to SalesFlowIQ.
7.3 Indemnification by Customer. Customer acknowledges that the use of the Software is subject to applicable laws of various jurisdictions and that some or all of the features of the Software may not be legally used in a particular jurisdiction. In the event that Customer uses the Software in violation of applicable laws, Customer will indemnify, defend and hold SalesFlowIQ harmless against any claim, demand, suit or proceeding made or brought against SalesFlowIQ by a third party alleging that Customer used the Software in violation of applicable laws, or for any claim that any Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Software in violation of applicable laws or this Agreement.
8. Rights in Software, Data and Materials.
8.1 SalesFlowIQ Ownership. As between SalesFlowIQ and Customer, SalesFlowIQ shall be the sole owner of all right, title, and interest in and to the Software, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer. Customer hereby irrevocably grants, transfers, and assigns to SalesFlowIQ, without reservation, all worldwide ownership rights, title, and interest, including, without limitation, any and all intellectual property which Customer may have or acquire, by operation of law or otherwise, in and to any or all of the Software.
8.2 Customer Ownership. As between SalesFlowIQ and Customer, Customer shall be the sole owner of all right, title, and interest in and to all Customer data, and Customer Confidential Information. SalesFlowIQ hereby irrevocably grants, transfers, and assigns to Customer, without reservation, all worldwide ownership rights, title, and interest, including, without limitation, any and all intellectual property rights, which SalesFlowIQ may have or acquire, by operation of law or otherwise, in and to any or all of the Customer data and materials, except for the right to process such data, materials and information as required by this Agreement. SalesFlowIQ may use any Customer data on an aggregated or de-identified basis for any purposes during or after the Term of this Agreement.
9. Subscription Termination or Expiration.
9.1. Term. The term of this Agreement will commence on the date of this Agreement and will continue for one year unless a different term is set forth in the Order Form. The term will then automatically renew for additional periods that are the same as the initial term unless either party gives the other party at least thirty (30) days’ advance written notice of its intent that the term does not renew for an additional term.
9.2. Termination for Breach. Either Party may terminate this Agreement upon sixty (60) days prior written notice to the other in the event of the other's failure to cure a material breach within thirty (30) days after receipt of the terminating Party's written notice of default concerning the same. Additionally, SalesFlowIQ may terminate Customer’s subscription to the Software if Customer commits any material breach related to the intellectual property rights of SalesFlowIQ or in the event of any non-payment of fees due to SalesFlowIQ, if Customer does not cure any such default within ten (10) days after notice is given to Customer.
9.3. Upon termination under this clause or expiration of the Agreement term, Customer shall discontinue all use of the Software and shall immediately return to SalesFlowIQ all its Confidential Information in Customer's possession or control. Customer shall also permanently delete all copies of all such items residing in Customer’s on or offline computer memory. SalesFlowIQ shall be entitled to deactivate and remove any Software from Customer’s systems. Customer shall, within five (5) days following the effective date of termination or expiration of Customer’s subscription, certify in writing to SalesFlowIQ, by an executive officer of Customer, that all copies of the Software and all documentation and any other materials required to be returned to SalesFlowIQ or to be deleted have been returned or deleted as appropriate.
9.4. Customer Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination of this Agreement, SalesFlowIQ will make Customer Data available to Customer.
10. Excusable Delays.
Notwithstanding any other term or provision of this Agreement, SalesFlowIQ shall not be liable for delays in delivery, failure to deliver, or otherwise to perform any obligation hereunder when such delay or failure arises from causes beyond the reasonable control of SalesFlowIQ, including, without limitation, such causes as acts of God or public enemies, labor disputes, supplier or material shortages, embargoes, rationing, acts of local, state or national governments or public agencies, epidemics and pandemics, utility or communication failures, fire, flood, storms, earthquake, epidemics, riots, terrorism, civil commotion, strikes, or war.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL SALESFLOWIQ’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO SALESFLOWIQ FOR THE SERVICES THAT GIVE RISE TO THE LIBILITY DURING THE SIX (6) MONTH PERIOD PRIOR TO THE ACCRUAL OF THE CLAIM.
12. LIMITATION ON DAMAGES
SALESFLOWIQ SHALL NOT BE LIABLE IN ANY EVENT FOR DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF PROFITS, AND/OR LOSS OF USE OF PRODUCT, OR FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF SALESFLOWIQ'S LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE.
13. Miscellaneous Provisions.
13.1. ARBITRATION. UPON THE DEMAND OF EITHER PARTY, ANY ACTION OR PROCEEDING SEEKING TO ENFORCE OR TO INTERPRET ANY PROVISION OF THIS AGREEMENT OR ANY RIGHT OR OBLIGATION, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY RIGHT OR OBLIGATION, OF ANY PARTY UNDER OR PURSUANT TO THIS AGREEMENT OR ARISING OUT OF SALESFLOWIQ’S RELATIONSHIP UNDER THIS AGREEMENT WITH CUSTOMER, SHALL BE DETERMINED EXCLUSIVELY BY ARBITRATION CONDUCTED BY AND UNDER THE RULES OF JAMS; PROVIDED, HOWEVER, THAT ARBITRATION SHALL NOT BE REQUIRED IN ANY ACTION OR CLAIM BY A PARTY WHICH INCLUDES A REQUEST FOR INJUNCTIVE, EQUITABLE, OR OTHER EMERGENCY RELIEF.
13.2. Severability. If any provision of this Agreement shall be invalid or unenforceable, such provision shall be deemed limited by construction in scope and effect to the minimum extent necessary to render the same valid and enforceable, and, in the event no such limiting construction is possible, such invalid or unenforceable provision shall be deemed severed from this Agreement without affecting the validity of any other term or provision hereof.
13.3. Entire Agreement. This Agreement, together with the Order Form, constitutes the entire understanding and agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous agreements, understandings, inducements, and conditions, express or implied, written or oral, between the Parties with respect thereto. The express terms hereof control and supersede any course of performance or usage of trade inconsistent with any of the terms of this Agreement. This Agreement may be executed electronically and in any number of counterparts, which will constitute one and the same agreement. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties.
13.4. Amendment and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only through a writing signed by the Party to be bound thereby. The waiver by a Party of any breach or default shall not be deemed to constitute a waiver of any other breach or default. The failure of any Party to enforce any provision shall not be construed as or constitute a waiver of the right of such Party to subsequently enforce such provision.
13.5. Notices. Whenever any Party desires or is required to give any notice, demand, consent, approval, satisfaction, statement, or request with respect to this Agreement, each such communication shall be in writing and shall be effective only if it is delivered by personal delivery or recognized over-night delivery service and addressed to the recipient Party at its notice address provided on the cover page of this Agreement. Such communications shall be effective upon receipt. Any Party may change its address for such communications to another address in the United States of America by giving notice of the change to the other Party in accordance with the requirements of this section.
13.6. Choice of Law; Construction of Agreement. This Agreement will be construed under the laws of the State of Texas, exclusive of its conflicts of laws, principles, and has been negotiated by the respective Parties and the language shall not be construed for or against any Party. The titles and headings are for reference purposes only and shall not in any manner limit the construction of this Agreement which shall be considered as a whole.
13.7. Further Assurances; Cooperation. Each Party shall execute such further instruments, documents, and agreements, and shall provide such further written assurances, as may be reasonably requested by the other Party to better evidence and reflect the transactions described in and contemplated by, and to carry into effect the intents and purposes of this Agreement.
13.8. Non-Solicitation. For a period ending two (2) years following the date of termination or expiration of this Agreement, Customer shall not solicit the employment or services of, nor employ or otherwise retain, any employee or former employee of SalesFlowIQ who has been directly or indirectly involved in the development, licensing, installation, or support of any SalesFlowIQ software product.
13.9. Independent Contractor Status. It is the intention of the Parties that their relationship is that of independent contractor and this Agreement shall not create any other relationship, whether partnership, joint venture, agency, or otherwise, between the respective Parties. Neither Party has any authority, whether actual, express, implied, or apparent, to bind or otherwise obligate the other Party in any capacity. SalesFlowIQ shall be entitled to list Customer in any designation of its customers in advertising or other published materials of SalesFlowIQ.
13.10. No Third-Party Beneficiary Rights. No provision of this Agreement is intended or shall be construed to provide or create any third party beneficiary right or any other right of any kind in any Person other than the Parties and their proper successors and assigns, and all terms and provisions shall be personal solely between the Parties to this Agreement and such proper successors and assigns.
13.11. Survival. The provisions of sections 6 through 8 and 10 through 13 shall survive the expiration or termination of this Agreement.
13.12. Fees and Costs. In the event of any litigation or arbitration between the Parties in connection with or arising out of this Agreement, or to enforce any right or obligation of either Party under this Agreement, or for a declaratory judgment, or for the construction or interpretation of this Agreement or any right or obligation under or impacted by this Agreement (in each case, a “Proceeding”), the Party which substantially prevails in any such Proceeding shall be entitled to recover from the other Party all of such prevailing Party’s fees and costs, including, without limitation, attorneys’ fees, court costs, and costs of expert witnesses and of investigations incurred at or in connection with any level of the Proceeding, including all appeals.
Effective Date: This Software Subscription Services Agreement is dated as of JUNE 12, 2024
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