The agreement between You and SalesMethods (each as defined below) (this “Agreement“) consists of (a) these Terms & Conditions and (b) any order form executed by you and SalesMethods (each, an “Order Form”).
Unless otherwise stated on your Order Form:
- Where you are an entity established in the United States of America, “SalesMethods” is SalesMethods Inc, a company incorporated and registered in the state of South Carolina with registered number 655287;and
- Otherwise, “SalesMethods” is Sales Methods Limited, a company incorporated and registered in England with registered number 06576679 whose registered office is at Unit F Whiteacres, Cambridge Road, Whetstone, Leicestershire, LE8 6ZG
“You” refers to the organisation into which the Product is installed. References to “Your” shall be construed accordingly.
To the extent of any inconsistency or contradiction between any terms set out in the Order Form and these Terms & Conditions, the Order Form shall prevail.
“Product” means any and all software which is identified on the Order Form as being licensed to You by SalesMethods, and related guidance sheets and help notes.
“Authorised Users” refers to the number of users specified on the Order Form each of whom has a current Salesforce user licence. Each SalesMethods Authorised User licence is associated with a Salesforce licence.
1. Delivery of Products
1.1 Your access to the Products will be through the ‘AppExchange’ operated by or on behalf of salesforce.com. SalesMethods shall not be under any obligation to provide any other method of delivery or access to the Products.
2. Grant of trial licence
2.1 Subject to the remainder of this clause 2, SalesMethods grants You a limited, non-exclusive, non-transferable, royalty-free licence to permit the Authorised Users to use the Products for a period of 14 days commencing on the date on which You first access the Products (the “Trial Period“, which SalesMethods may extend by agreement with You at SalesMethods’ sole discretion), solely for the purposes of evaluating whether the Products meet Your requirements.
2.2 The following conditions apply during the Trial Period:
2.2.1 no Fee is payable in respect of Your use of the Products during the Trial Period;
2.2.2 the permitted use restrictions set out in clause 4 apply in full during the Trial Period;
2.2.3 the support obligations in clause 5 do not apply during the Trial Period and SalesMethods shall have no obligation to provide any support in respect of the Products; and
2.2.4 the Products are provided on an “as is” basis and without any warranty or representation of any kind, including those set out in clause 10.
2.3 SalesMethods may terminate the Trial Period at any time by written notice to You.
2.4 Upon expiry or earlier termination of the Trial Period:
2.4.1 if You wish to continue to use the Products, You must execute an Order Form and pay the applicable Fee in accordance with clause 6. If no Order Form is executed before the end of the Trial Period, Your access to and licence to use the Products will automatically cease; and
2.4.2 clause 8.5 shall apply as if this Agreement had been terminated.
3. Grant of licence
- 3.1 In consideration of Your agreement to pay the Fee (defined in clause 6.1 below) and comply with the terms of this Agreement, SalesMethods grants to You a limited, non-exclusive and non-transferable licence, without the right to grant sub-licences, to permit the Authorised Users to use the Products during the term of this Agreement solely for Your internal business operation.
- 3.2 Such licence includes a right for You to use any new versions and/or updates (including modification of current features) of the Products which may from time to time be made available by SalesMethods without prior notice.
4. Permitted use
4.1 You may use the Products in conjunction with and as part of the salesforce.com CRM application (the “CRM Application”) for Your internal business purposes only. Your continued use of the Products and the provision of associated support by SalesMethods for the Products is conditional on You not being in material breach of this Agreement.
4.2 You may not use or have access to the Products on a stand alone basis other than in conjunction with and as part of the CRM Application.
4.3 You must not:
4.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Products in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Products; or
4.3.2 access all or any part of the Products in order to build a product or service which competes with the Products in any form or media or by any means; or
4.3.3 use the Products to provide services to third parties; or
4.3.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Products available to any third party except the Authorised Users; or
4.3.5 attempt to obtain, or assist third parties in obtaining, access to the Products, other than as provided under this clause 4
4.4 You acknowledge that some or all of the Products may be subject to the export control laws of the United Kingdom. You will not export, re-export, divert, transfer or disclose any part of the Products or any related technical information or materials, directly or indirectly, in breach of any applicable export law or regulation.
4.5 Other than the permitted uses set out in this Agreement between You and SalesMethods, You may not use the Products in any other way. In particular (but without limitation) You may not make any use of the Products that:
4.5.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.5.2 facilitates illegal activity;
4.5.3 depicts sexually explicit images;
4.5.4 promotes unlawful violence;
4.5.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
4.5.6 is otherwise illegal or causes damage or injury to any person or property;
and SalesMethods may, without liability or prejudice to its other rights, disable Your access to any material that breaches the provisions of this clause.
4.6 You agree to use all reasonable endeavours to prevent any unauthorised access to, or use of, the Products and promptly notify SalesMethods if You become aware of such unauthorised access or use.
4.7 The rights provided under this clause 4 are granted to You only, and shall not be considered granted to any of Your subsidiaries or holding companies, unless otherwise stated on the Order Form.
5. Support
5.1 As part of the subscription service SalesMethods will provide support services for the current and immediately preceding versions of the Products. Subject to clause 5.4, SalesMethods will provide support solely in circumstances where the functionality of the Products is materially impaired (“Error”).
5.2 Provided that all Fees are fully paid, You are entitled to support services on the following basis:
5.2.1 You will notify SalesMethods of a named contact within Your organisation in respect of support issues;
5.2.2 Your named contact will promptly notify SalesMethods (by email to support@salesmethods.com) of any Error (a “Support Request”); and
5.2.3 You will cooperate with and provide assistance to SalesMethods as SalesMethods may reasonably request in order to assist SalesMethods in the performance of its support services.
5.3 Subject to Your compliance with clause 5.2, on receipt of a Support Request in respect of the Products from Your named contact, SalesMethods will:
5.3.1 send Your named contact an email acknowledging receipt of such Support Request within 24 hours of the time of receipt (or, if this would require a response on a day which is not a Business Day, on the next following Business Day); and
5.3.2 within three Business Days after the date of receipt of the Support Request use reasonable commercial efforts to send Your named contact a further email suggesting steps to be taken to resolve the Error. SalesMethods will provide its support services only during normal working hours, being 09.00 hours to 17.00 hours GMT on any Business Day. A “Business Day” means any day other than a Saturday, a Sunday or any day which is a public holiday or bank holiday in England.
5.4 SalesMethods will not provide support in respect of the Products in any of the following circumstances:
5.4.1 a failure of hardware, equipment or software not covered by this Agreement;
5.4.2 Your failure to comply with the relevant guidance sheets and help notes contained in the Products;
5.4.3 any modification, enhancement or customisation of the Products by anyone other than SalesMethods;
5.4.4 any cause or causes beyond the reasonable control of SalesMethods (including without limitation floods, fires, loss of electricity or other utilities);
5.4.5 any Errors arising from anything other than the Products, such as databases, web-servers or hardware;
5.4.6 installation, configuration, management and/or operation of other applications owned or licensed by You;
5.4.7 Products not obtained under the terms of this Agreement;
5.4.8 any act or omission of salesforce.com; and/or
5.4.9 any error in the CRM Application.
5.5 The support services referred to in this clause 5 are limited to support by email only and that SalesMethods will not provide any support for the Products by other means (such as telephone or on-site). If You require any telephone or other support for the Products from SalesMethods You must enter into a separate agreement with SalesMethods for ‘Premium Level’ support (details of which are available on request).
5.6 If SalesMethods is unable to fix an Error within 7 days of sending the acknowledgment email referred to above, SalesMethods will refund to You a pro-rata portion of any Fees paid for the Product, calculated from the day after that 7 day period.
5.7 Subject to clause 12 (Limitation of liability), this clause 5 sets out Your sole remedy in respect of any Error.
6. Charges
6.1 You agree to pay the subscription fee (“Fee”) as set out on the Order Form.
6.2 You agree that SalesMethods may charge all amounts due and owing for the use of the Products, including the Fee or any other charges associated with Your use of the Products. SalesMethods may change such Fees or charges at any time in accordance with the provisions of clause 14 (Variation).
6.3 If You provide credit card details to SalesMethods, You hereby authorise SalesMethods to bill such credit card for the Fee payable on and from the Effective Date and for the Fees payable in respect of each renewal period.
6.4 You agree that if SalesMethods is unable to collect the Fee or charges owed to SalesMethods for the Products by credit card or the agreed invoicing methodology, SalesMethods may:
6.4.1 suspend Your access to the Products until such Fees or charges are paid in full, upon notice to You; and
6.4.2 take any other steps it deems necessary to collect the Fees or charges due from You and that You will be responsible for all costs and expenses incurred by SalesMethods in connection with such collection activity.
6.5 You further agree that SalesMethods may collect interest at a rate of 4% per annum above the Bank of England base rate on any amounts not paid when due.
7. Proprietary Rights
7.1 SalesMethods or its licensors own and shall retain all proprietary rights, including all copyright, patent, trade secret, trade mark and all other intellectual property rights, in and to the Products. SalesMethods shall retain ownership of any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Products.
7.2 You acknowledge that the licence granted under this Agreement does not provide You with title to or ownership of the Products, but only a right to use the Products under the terms and conditions of this Agreement. You also acknowledge that You have no right to have access to the source code of the Products.
8. Term and termination
8.1 This Agreement will be in force and effect from the Effective Date until terminated in accordance with the provisions of this Agreement.
8.2 The “Effective Date” is the date specified as such on the Order Form, or, if no such date is specified, the date of execution of the Order Form.
8.3 This Agreement has an initial fixed term of 2 years from the Effective Date and will be renewed automatically for periods of 1 year at a time unless You send SalesMethods, or SalesMethods sends to You, a notice of termination by email (if to SalesMethods, to sales@salesmethods.com) no later than 60 (sixty) calendar days before the expiry of the current term.
8.4 SalesMethods may terminate this Agreement immediately by written notice to You if You:
8.4.1 materially breach this Agreement and:
(a) that breach is irremediable; or
(b) You fail to remedy the breach within 14 days after receipt of written notice from SalesMethods requiring You to do so; or
8.4.2 become unable to pay Your debts as they fall due or admit inability to pay Your debts, or are deemed to be unable to pay Your debts under applicable insolvency laws;
8.4.3 enter into any composition or arrangement with Your creditors (other than relating to a solvent restructuring);
8.4.4 have a receiver, manager, administrator, or equivalent appointed over all or any part of Your undertaking, assets, or income;
8.4.5 have a resolution passed or a petition presented to any court for Your winding up or for the granting of an administration order in respect of You, unless such petition is frivolous or vexatious and is withdrawn or dismissed within 30 days of its presentation;
8.4.6 have a winding-up order made against You; or
8.4.7 cease or threaten to cease to carry on business.
8.5 Upon any termination of this Agreement:
8.5.1 Your licence to use the Products will automatically cease; and
8.5.2 You shall immediately cease any further use of the Products and destroy any copies of associated software within Your possession and control.
9. Injunctive relief
9.1 You acknowledge that any use of the Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Products, may cause irreparable injury to SalesMethods, and under such circumstances SalesMethods will be entitled to equitable relief, without posting any security, including, but not limited to, interim and permanent injunctive relief.
10. Warranties
10.1 SalesMethods gives no warranty or representation of any kind, express or implied, regarding:
10.1.1 the Products;
10.1.2 the results that may be obtained from the use of the Products; or
10.1.3 the accuracy or reliability of any information obtained through use of the Products,
including, without limitation, any warranty of:
(a) security;
(b) freedom from errors;
(c) merchantability; or
(d) fitness for a particular purpose.
10.2 Any information and/or data downloaded using, input into or otherwise obtained through use of the Products is at Your own discretion and risk.
11. Indemnities
11.1 SalesMethods shall indemnify You from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees and expenses) arising out of a claim that the Products infringe copyright, a UK patent issued as of the date of this Agreement, or a trade mark of a third party. Your right to make a claim based on this indemnity is subject to Your:
11.1.1 promptly giving written notice of the claim to SalesMethods;
11.1.2 giving SalesMethods sole control of the defence and settlement of the claim (provided that SalesMethods may not settle any claim unless it unconditionally releases You of all liability);
11.1.3 providing to SalesMethods all available information and assistance; and
11.1.4 not compromising or settling such claim.
11.2 SalesMethods shall have no indemnification obligation, and You shall indemnify SalesMethods pursuant to this Agreement, for claims in respect of any infringement arising from the combination of the Products with any of Your products, services, hardware or business process(s). Subject to clause 11.1 above, You agree to indemnify SalesMethods, its directors, employees and consultants from and against any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) arising from Your use of the Products, Your breach of this Agreement or the infringement or breach by You or any other user of Your account, of any intellectual property or other right of any person or entity.
12. Limitation of liability
12.1 The following definitions apply in this clause 12:
12.1.1 liability: every kind of liability arising under or in connection with this Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise; and
12.1.2 default: any act or omission resulting in one party incurring liability to the other.
12.2 Except as expressly and specifically provided in this Agreement:
12.2.1 You assume sole responsibility for results obtained from the use of the Products by You, and for conclusions drawn from such use. SalesMethods shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts input into the Product; and
12.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
12.2.3 the Products are provided to You on an “as is” basis;
12.2.4 SalesMethods does not warrant that the Products will be uninterrupted or error-free;
12.2.5 SalesMethods shall have no liability in respect of:
(a) any act or omission of salesforce.com which affects the availability or functionality of the Products and/or
(b) Your use of the CRM Application.
12.3 Nothing in this Agreement excludes the liability of SalesMethods:
12.3.1 for death or personal injury caused by SalesMethods’s negligence; or
12.3.2 for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
12.4.1 SalesMethods shall have no liability for any:
(a) loss of profits,
(b) loss of business,
(c) wasted expenditure,
(d) depletion of goodwill and/or similar losses,
(e) loss or corruption of data or information, or
(f) any special, indirect or consequential loss, costs, damages, charges or expenses; and
12.4.2 SalesMethods’s total aggregate liability to You, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed the total Fees paid in the 12 months preceding the event giving rise to the claim.
12.5 Nothing in this Agreement excludes Your liability for any breach, infringement or misappropriation of SalesMethods’s intellectual property rights.
13. Entire agreement
13.1 This Agreement constitutes the entire understanding and agreement between the parties in respect of the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties relating to such subject matter.
13.2 Each party acknowledges and agrees that in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. The only remedy available to either party in respect of any such statements, representation, warranty or understanding shall be for breach of contract under the terms of this Agreement.
13.3 Nothing in this clause 13 shall operate to exclude any liability for fraud.
14. Variation
14.1 SalesMethods may amend, modify, or update this Agreement at any time. Any such changes shall become effective upon being posted on the SalesMethods website. It is Your responsibility to review the website or AppExchange periodically for any updates to these terms.
15. Waiver and remedies
15.1 Any failure to exercise or any delay in exercising a right or remedy provided by this Agreement or at law or in equity shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement shall not constitute a waiver of any other breach or default and shall not affect the other terms of this Agreement.
15.2 Any and all rights and remedies of SalesMethods upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement, or by law or equity, on SalesMethods, and the exercise of any one remedy will not preclude the exercise of any other.
16. Severability
16.1 If any part of this Agreement is found by a court of competent jurisdiction or other competent authority to be invalid or unenforceable then such part shall be severed from the remainder of this Agreement which shall remain valid and enforceable to the fullest extent permitted by law.
17. Transfer
17.1 You may not sub-license, assign or transfer in any way any of Your rights, liabilities and/or obligations under this Agreement without the prior written consent of SalesMethods.
17.2 SalesMethods may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.
18. Notices
18.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
18.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
18.1.2 sent by email to the following addresses (or an address substituted in writing by the party to be served):
(a) SalesMethods: sales@salesmethods.com
(b) You: the email address specified on the Order Form.
18.2 Any notice shall be deemed to have been received:
18.2.1 if delivered by hand, at the time the notice is left at the proper address;
18.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
18.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours (9am-5pm in the relevant location) in the place of receipt, when business hours resume.
19. Miscellaneous
- 19.1 This Agreement has been prepared in the English language and such version shall be used for determining the construction or interpretation of this Agreement.
- 19.2 Except as expressly provided in this Agreement, all notices or other correspondence to SalesMethods under this Agreement must be sent to the address set out in this Agreement or otherwise as provided by SalesMethods for such purpose.
- 19.3 It is not intended that anyone other than the parties to this Agreement will be entitled to obtain any benefit under this Agreement or to enforce any of its terms.
- 19.4 The clause headings appearing in this Agreement are for reference only and shall not affect the construction or interpretation of this Agreement.
20. Governing Law and Jurisdiction
20.1 Where SalesMethods is Sales Methods Limited:
20.1.1 this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England; and
20.1.2 each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
20.2 Where clause 20.1 does not apply:
20.2.1 this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Delaware, USA; and
20.2.2 each party irrevocably agrees that the courts of Delaware, USA shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
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