Version Dated: March 24, 2021
These Terms and Conditions govern Customer’s use of the Services. By accepting this Agreement, by (1) clicking a box indicating acceptance, (2) executing an order form that references this agreement, or (3) using the Free Services, Customer agrees to the terms of this Agreement.
If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this agreement and may not use the services.
ClosePlan’s direct competitors are prohibited from accessing or otherwise using the Services, except with ClosePlan’s express written permission.
1. Definitions.
1.1. “Agreement” means these Terms and Conditions.
1.2. “Free Services” means Services that ClosePlan makes available to Customer free of charge. Free Services exclude Services offered as Purchased Services.
1.3. “Free Users” means individuals for whom the Customer has provisioned Free Services.
1.4. “Purchased Services” means Services that Customer purchases under an Order Form, as distinguished from Free Services.
1.5. “Services” means the software-as-a-service offerings offered to the Customer as Free Services or Purchased Services.
1.6. “User” means an individual that (i) the Customer authorizes to use the Services and (ii) the Customer has purchased a subscription for the individual or, for Free Services, the Free Users.
2. License to Use Service. Subject Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form, ClosePlan grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable right during the Term, solely for use by then-current Users in accordance with the terms and conditions herein, to access the Service through Customer’s Salesforce.com, Inc. instance (“Salesforce Instance”) for Customer’s internal business purposes in connection with Customer’s Salesforce Instance.
3. Fees and Payment.
3.1. Fees. Customer agrees to pay all fees in accordance with the Order Form and this Agreement. The fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on Customer’s subscription to the Service, and Customer will be solely responsible for all such taxes. All fees paid are non-refundable. All amounts are quoted in and must be paid in US dollars. In addition to any other rights granted to ClosePlan herein, ClosePlan reserves the right to suspend Customer’s access to and use of the Service if Customer fails to pay any amount owed on or before its due date. Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
3.2. Licenses Acquired Through Resellers. In the event that you purchased the licenses described herein through an authorized reseller (a “Reseller”) of ClosePlan, Customer shall make all payments to Reseller. Reseller may offer different prices or different or additional terms and conditions for use of the Services than made available by ClosePlan. Any such different or additional terms and conditions (including any additional warranties) are between Customer and Reseller and ClosePlan assumes no responsibility for such terms.
4. Free Services.
4.1. If Customer registers on ClosePlan’s or an Affiliate’s website for Free Services, use of the Free Services is provided pursuant to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer that has not yet purchased Purchased Services and are provided without charge up to the limits as described in Section 4.2. Usage over the limits described in Section 4.2 requires Customer to purchase additional resources or services. The additional resources or services will be described in an Order Form, detailing the Purchased Services and pricing applicable to the use of the Purchased Services. Customer agrees that ClosePlan, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that ClosePlan will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if ClosePlan terminates Customer’s account, except as required by law ClosePlan will provide Customer a reasonable opportunity to retrieve its Customer Data.
4.2. Free Service Limits. If Customer registers on ClosePlan’s or an Affiliate’s website for Free Services, the Free Services include (i) up to twenty-five (25) full Relationship Map Licenses per Customer and (ii) up to forty (40) Relationship Map Read Only Licenses per Customer.
5. Restrictions.
5.1. Prohibited Uses. Customer may not directly or indirectly rent, lease, sell, license, assign, loan, use for timesharing or service bureau purposes or otherwise transfer the Service to any third party. Customer may not directly or indirectly (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Service 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 Service, computer systems or networks related to the Service; (d) modify or create derivative works based on the Service; (e) copy or distribute the Service; (f) allow use of the Service by anyone other than user(s) authorized and paid for by Customer or Customer’s Free Users; (g) knowingly transmit through the Service unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Service other than as permitted in Section 2. Customer acknowledges that ClosePlan may utilize technological controls to ensure Customer’s compliance with this Agreement.
5.2. Compliance. Customer is responsible and liable for all activity of its Users and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, 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 Service, and will notify us promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to ClosePlan immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by Customer or Customer’s users; and (iii) not impersonate another User or provide false identity information to gain access to or use the Service. Customer will not attempt to or use its access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein.
6. Term; Termination; Survival.
6.1. Term. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
6.2. Term for Purchased Services. The term for Purchased Services, unless stated otherwise in the applicable Order Form, will commence on the date specified in the applicable Order Form and will remain in force for the term specified in the applicable Order Form (“Initial Term”). Thereafter, the term for the Purchased Services will automatically renew for successive one-year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless Customer provides notice of non-renewal at least 60 days before the expiration of the then applicable term. The number of Users subscribed during any Renewal Term will be the number of Users subscribed at the end of the immediately proceeding term unless otherwise described in an Order Form. If ClosePlan wishes to increase the price of the Service for any Renewal Term, ClosePlan will give Customer notice of such proposed price increase not less than 90 days before the expiration of the then applicable term.
6.3. Termination. Either party shall have the right to terminate this Agreement in the event of a material breach of this Agreement by the other party, which material breach has not been cured within 30 days of 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 7 days after receipt of written notice from ClosePlan. Upon any termination for cause by Customer, ClosePlan shall refund to Customer any prepaid, unused fees applicable to the remaining portion of the subscription term following the effective date of termination. 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 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 Service. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable prior to the effective date of termination.
6.4. Survival. Sections 3, 5, 6.4, 8, 9, and 11–14 will survive any expiration or termination of this Agreement.
7. Support and Upgrades.
7.1. Support. Support for Purchased Services will be available during normal business hours Monday through Friday (9:00am-5:00pm PT) (“Business Hours”) via email. “PT” means Pacific Standard Time or Pacific Daylight Time, whichever is currently in effect for San Francisco, California.
7.2. Upgrades. From time to time, ClosePlan may upgrade the Service. Such updates are provided without charge provided that Customer has paid all applicable fees then due. Customer agrees that ClosePlan can automatically push upgrades of the ClosePlan AppExchange package to the Customer’s Salesforce Instance. ClosePlan will notify Customer five (5) business days prior to pushing the upgrade to Customer’s Salesforce Instance. Unless otherwise indicated in the foregoing notice, ClosePlan will push the upgrade to the Customer’s Salesforce Instance during non-Business Hours.
8. 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. ClosePlan’s Confidential Information includes, but not be limited to, Service, documentation, technology and technical information, product designs and business processes. Each party agrees to use Confidential Information solely to perform 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 at least 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 (i) publicly available without breach of an obligation owed to the disclosing party hereunder, (ii) obtained from third parties not under confidentiality restrictions, (iii) independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or (iv) required to be disclosed by order of court or other governmental entity. If either party breaches or threatens to breach the provisions of this Section 8, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief.
9. Ownership of Rights.
9.1. ClosePlan Technology. The rights granted hereunder do not constitute a transfer or sale of ClosePlan’s or ClosePlan’s licensors’ ownership rights in or to the Service, including, without limitation: (a) the Service and the applicable documentation; (b) ClosePlan’s name, logo, domain name, product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “ClosePlan Technology”). The ClosePlan Technology is protected by applicable intellectual property laws, including, but without limitation, United States copyright laws and international treaties. Except for the rights granted above, ClosePlan and its licensors retain all right, title and interest in and to ClosePlan Technology, including all intellectual property rights therein.
9.2. Customer’s Data. As between the parties, Customer owns the data in Customer’s Salesforce Instance and ClosePlan makes no claim of ownership to any data in Customer’s Salesforce Instance. Customer acknowledges and agrees that the Service will access and use customer data from Customer’s Salesforce Instance, but solely to the extent necessary to provide, improve, and modify the Services.
9.3. Feedback. Customer grants to ClosePlan a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customer’s Users relating to the operation ClosePlan or its Affiliate’s services.
10. Service Performance.
Customer acknowledges that access to and use of the Service is dependent on the availability and proper functioning of Customer’s Salesforce Instance and that ClosePlan has no control over Customer’s Salesforce Instance. ClosePlan disclaims responsibility and liability for any inability to access or use the Service, or degradation of the performance of the Service, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, Customer’s Salesforce Instance or other third party owned or controlled technology. Customer is solely responsible for the configuration of Customer’s Salesforce Instance and all technology and services necessary to access and use Customer’s Salesforce Instance.
11. Warranties and Disclaimers.
11.1. Customer Obligations and Warranties. Customer shall be solely responsible for all activities in connection with the Service that are performed by the Users. Without limiting the generality of the foregoing, Customer shall: (i) comply with all applicable laws and regulations in performing Customer’s obligations hereunder; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by Customer to ClosePlan or processed using the Service. Customer warrants that any data, content, or materials used, stored or created by Customer using the Service will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties, representations, or obligations, or if Customer infringes or misappropriate ClosePlan’s intellectual property rights, in addition to any other remedies available at law or in equity, ClosePlan will have the right to immediately, in ClosePlan’s sole discretion, suspend Customer’s access to or use of the Service and/or terminate this Agreement, if deemed reasonably necessary by ClosePlan to prevent any harm to ClosePlan or its business.
11.2. ClosePlan Warranties. ClosePlan warrants that: (i) it shall comply with all applicable laws and regulations in performing its obligations hereunder; (ii) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein. Customer’s exclusive remedy and ClosePlan’s entire liability for a breach of the warranties in Section 11.2(i) and 11.2 (ii) are those described in Section 6.3 and for a breach of the warranty of Section 11.2(iii), the indemnification described in Section 12 (Indemnification).
11.3. Disclaimers. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SERVICE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLOSEPLAN 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. CLOSEPLAN DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE FUNCTIONS OF THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS.
12. Indemnification.
12.1. Subject to this Agreement, ClosePlan shall defend Customer, at ClosePlan’s expense, against any claims made or brought against Customer by a third party, arising out of a claim or demand alleging that Customer’s use of the Service as contemplated hereunder infringes a U.S. patent, copyright or trademark of a third party, or misappropriates such third party’s trade secrets. Further, ClosePlan shall indemnify against all costs (including reasonable legal fees and expenses) finally awarded against Customer by a court of competent jurisdiction or an arbitrator or agreed to in a written settlement agreement signed by us. ClosePlan may, at its option and expense: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current subscription term. ClosePlan 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 Service (i) after it has been modified by Customer or a third party without ClosePlan’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by us where the combination is the basis for the infringing activity.
12.2. Subject to this Agreement, Customer shall defend ClosePlan, at Customer’s expense, against any claims made or brought against us by a third party, arising out of a claim or demand alleging that any data or content submitted by Customer to ClosePlan or the Service infringes, misappropriates, or violates any rights of a third party including any third party intellectual property rights. Further, Customer shall indemnify and hold us harmless against all costs (including reasonable legal fees and expenses) finally awarded by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Customer.
12.3. Promptly upon receiving notice of a claim or demand, the indemnified party shall (a) give the indemnifying party prompt written notice of the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at indemnifying party’s sole cost and expense, all reasonable assistance in the defense or settlement of such claim. The indemnifying party’s indemnification obligation shall be offset only to the extent its ability to defend or settle a claim is materially prejudiced by the indemnified party’s failure to provide prompt notice of the claim as required in subsection (a) of the aforementioned sentence.
12.4. This Section 12 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 12.
13. Limitation of Liabilities.
13.1. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA (EVEN IF THE SAME WERE JUDGED BY A COURT TO BE DIRECT LOSSES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION), OR CUSTOMER’S BREACH OF THE RESTRICTIONS IN SECTION 5.1, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICE FOR THE IMMEDIATELY PRECEDING 6-MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE.
13.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FOR FREE SERVICES THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND CLOSEPLAN SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE CLOSEPLAN’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, CLOSEPLAN AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS AND (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO CLOSEPLAN AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
14. Miscellaneous.
14.1. Changes. ClosePlan reserves the right to modify the terms and conditions of this Agreement at any time upon reasonable notice to Customer. Continued use of the Service after any such change shall signify Customer’s consent to such change.
14.2. Governing Law; Venue. This Agreement shall be governed by the law of the State of California 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 Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. 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.
14.3. Assignment. 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.
14.4. Waiver; Force Majeure. ClosePlan’s failure 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 us in writing. 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” event.
14.5. Entire Agreement. This Agreement comprises the entire agreement between Customer and ClosePlan and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No text or information set forth on any other email or document shall modify the terms and conditions of this Agreement.
14.6. Notices. All notices, required or permitted under this Agreement must be delivered in writing by email, courier, 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) if delivered by email, upon sending to the email address specified in the Order Form, or (b) if delivered by courier or certified or registered mail, three (3) days after being deposited in the mail with the carrier or postal authority of the receiving party’s country and addressed to the other party as specified in the Order Form.