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PeerNova Master Subscription
Agreement
Last updated January 30, 2024
THIS PEERNOVA MASTER SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”)
CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND PEERNOVA, INC.
(“PEERNOVA,” “WE” OR “OUR”) AND GOVERNS YOUR USE AND PEERNOVA’S DELIVERY
OF PEERNOVA’S CRM SOFTWARE AND SERVICES. CAPITALIZED TERMS USED IN THIS
AGREEMENT SHALL HAVE THE MEANINGS SET FORTH IN SECTION 12 EXCEPT AS
OTHERWISE DEFINED HEREIN.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. BY DOING ANY OF THE
FOLLOWING:
● CLICKING A BOX INDICATING ACCEPTANCE OF THE CRM SOFTWARE
INSTALLATION;
● DOWNLOADING OR USING THE CRM SOFTWARE OR THE SERVICES;
● SIGNING AN ORDER FORM REFERENCING THIS AGREEMENT; OR
● PAYING AN INVOICE REFERENCING THIS AGREEMENT;
YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE
ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL
ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND
SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL
REFER TO SUCH ENTITY OR INDIVIDUAL. IF CUSTOMER DOES NOT HAVE SUCH
AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND
CONDITIONS, CUSTOMER MUST NOT: INSTALL THE SERVICES; ACCEPT THIS
AGREEMENT; OR USE THE SERVICES. THIS AGREEMENT IS EFFECTIVE WHEN
CUSTOMER CLICKS “I ACCEPT” OR CUSTOMER DOWNLOADS THE CRM SOFTWARE OR
BEGINS USING THE SERVICES, WHICHEVER IS EARLIER (“EFFECTIVE DATE”).
1. PeerNova’s Responsibilities
1.1. Provision of Purchased Services. PeerNova will make the Services and
Content available to Customer pursuant to this Agreement, the applicable Order
Form(s), and the Documentation.
1.2. Protection of Customer Data. PeerNova shall maintain industry standard
administrative, physical, and technical safeguards for protection of the security,
confidentiality and integrity of Customer Data, including protections against
unauthorized disclosure or access to Customer Data. The PeerNova Data
Processing Addendum located at https://peernova.com/legal-cfsf/dpa (“DPA”)
constitutes part of this Agreement unless the parties execute a different DPA.
PeerNova shall process personally identifiable information of Customer in
accordance with the DPA. PeerNova may update the DPA upon prior written
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notice to Customer; provided PeerNova’s obligations in the DPA shall not be
materially diminished except as required by applicable law.
1.3. Beta Services. From time to time, PeerNova may make Beta Services available
to Customer at no charge. Customer may choose to use such Beta Services or
not in its sole discretion. Use of Beta Services is subject to the terms and
conditions of this Agreement. PeerNova may change Beta Services without
notice. In the event of a conflict between this section and any other portion of
this Agreement, this section shall control.
BETA SERVICES ARE PROVIDED “AS IS” AND ARE NOT READY FOR
PRODUCTION OR COMMERCIAL USE. PEERNOVA DISCLAIMS ALL
WARRANTIES REGARDING BETA SERVICES, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,
NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
PEERNOVA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR
LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA SERVICES UNLESS
SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER
APPLICABLE LAW, IN WHICH CASE PEERNOVA’S LIABILITY WITH RESPECT
TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT
EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, PEERNOVA AND
ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT
TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE BETA SERVICES WILL
MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE BETA
SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM
ERROR, OR (C) USAGE DATA PROVIDED THROUGH THE BETA SERVICES
WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN SECTION 9 (LIMITATIONS OF LIABILITY), CUSTOMER SHALL BE FULLY
LIABLE UNDER THIS AGREEMENT TO PEERNOVA AND ITS AFFILIATES
FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE BETA
SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY
OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
1.4. Free Trial. If Customer registers on PeerNova’s website or product listing on the
Salesforce AppExchange for a free trial, PeerNova will make the applicable
Service(s) available to Customer on a trial basis free of charge until the earlier of
(a) the end of the free trial period for which Customer registered to use the
applicable Service(s), or (b) the start date of any Purchased Services
subscriptions ordered by Customer for such Service(s), or (c) termination by
PeerNova of the free trial in its sole discretion. Additional trial terms and
conditions may appear on the trial registration web page. Any such additional
terms and conditions are incorporated into this Agreement by reference and are
legally binding.
ANY DATA THAT CUSTOMER ENTERS INTO THE SERVICES, AND ANY
CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER,
DURING CUSTOMER’S FREE TRIAL, WILL BE PERMANENTLY LOST
UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME
SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE
UPGRADED SERVICES, OR EXPORTS SUCH DATA BEFORE THE END OF
THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR
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CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT
WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G.,
FROM UNLIMITED EDITION TO ENTERPRISE EDITION); THEREFORE, IF
CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE
FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT
CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR
CUSTOMER DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 6.2 (PEERNOVA’S INDEMNITY) AND
SECTION 7 (REPRESENTATIONS AND WARRANTIES), DURING THE FREE
TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY
AND PEERNOVA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR
LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE
FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT
ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE PEERNOVA’S
LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE
FREE TRIAL SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE
FOREGOING, PEERNOVA AND ITS AFFILIATES AND ITS LICENSORS DO
NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S
USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET
CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES
DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY,
SECURE OR FREE FROM ERROR, OR (C) USAGE DATA PROVIDED DURING
THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATIONS OF LIABILITY),
CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO
PEERNOVA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF
CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD,
ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF
CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S
DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR
WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE
MAKING A PURCHASE.
1.5. Free Services. PeerNova may make Free Services available to Customer. Use
of Free Services is subject 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 without charge
up to certain limits as described in the Documentation. Usage over these limits
requires Customer’s purchase of additional resources or services. for Customer
agrees that PeerNova, 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 PeerNova 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
PeerNova terminates Customer’s account, except as required by law PeerNova
will provide Customer a reasonable opportunity to retrieve its Customer Data.
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NOTWITHSTANDING SECTION 7 (REPRESENTATIONS AND WARRANTIES)
AND SECTION 6.2 (PEERNOVA’S INDEMNITY), THE FREE SERVICES ARE
PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PEERNOVA SHALL
HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE
WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF
LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH
CASE PEERNOVA’S LIABILITY WITH RESPECT TO THE FREE SERVICES
SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING,
PEERNOVA 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, (B)
CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED,
TIMELY, SECURE OR FREE FROM ERROR, OR (C) USAGE DATA PROVIDED
THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATIONS OF LIABILITY),
CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO
PEERNOVA 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.
2. Use of Services and Content
2.1. Access. Customer may access and use the Services solely for its own benefit
and in accordance with this Agreement, the Documentation, and any applicable
Order Forms(s).
2.2. Subscription to the Services. Subject to the terms of this Agreement,
PeerNova hereby grants to Customer a limited, non-exclusive, non-transferable
(except as provided in this Agreement), nonsublicensable, revocable subscription
license for Customer’s use of the Services by the quantity of licenses as
specified in an associated Order Form or invoice, in accordance with the
Documentation and solely for Customer’s internal business purposes. Unless
otherwise provided in the applicable Order Form or Documentation, (a)
Purchased Services and access to Content are purchased as subscriptions for
the term stated in the applicable Order Form or in the applicable online
purchasing portal, (b) subscriptions for Purchased Services may be added during
a subscription term at the same pricing as the then-current subscription pricing,
prorated for the portion of that subscription term remaining at the time the
subscriptions are added, and (c) any added subscriptions will terminate on the
same date as the then-current subscriptions. Customer may allow Customer’s
Affiliates to access and use the Services. Customer is solely liable and
responsible for Customer’s Affiliate access and use of the Services and
compliance with this Agreement. Customer agrees that its subscriptions to the
Services are not contingent on the delivery of any future functionality or features,
or dependent on any oral or written public comments made by PeerNova
regarding future functionality or features.
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2.3. Usage Limits. Services and Content are subject to usage limits specified in
Order Forms and Documentation. If Customer exceeds a contractual usage limit,
PeerNova may work with Customer to seek to reduce Customer’s usage so that
it conforms to that limit. If, notwithstanding PeerNova’s efforts, Customer is
unable or unwilling to abide by a contractual usage limit, Customer will execute
an Order Form for additional quantities of the applicable Services or Content
promptly upon PeerNova’s request, and/or pay any invoice for excess usage in
accordance with Section 5.2 (Invoicing and Payment).
2.4. Usage Restrictions. Customer shall not:
2.4.1. make any Services or Content available to anyone other than Customer
or Users, or use any Services or Content for the benefit of anyone other
than Customer or its Affiliates, unless expressly stated otherwise in an
Order Form or the Documentation,
2.4.2. license, sublicense, sell, resell, use as a service bureau, or otherwise use
the Services for a third party’s benefit unless authorized by PeerNova;
2.4.3. transfer, assign (except as provided in this Agreement), distribute or
otherwise commercially exploit the Services or Content;
2.4.4. modify or make derivative works based upon the Services or Content;
2.4.5. create Internet “links” to the Services or “frame” or “mirror” any Content on
any other server or wireless or Internet-based device;
2.4.6. reverse engineer, decompile, or otherwise attempt to discover source
code of any portion of the Services;
2.4.7. interfere with or make use of the Services in any manner not consistent
with the Documentation;
2.4.8. copy any ideas, features, functions or graphics of the Services;
2.4.9. upload Customer Data to the Services or Services support channels that
contain any Malicious Code or programming routines, macros, or other
elements that may damage, surreptitiously intercept or expropriate any
system, data, or personal information;
2.4.10. use the Services for any illegal purpose or in violation of any local, state,
national, or international law;
2.4.11. perform any fraudulent activity, including impersonating any person,
entity, or User, claiming a false affiliation or identity, or accessing
Customer Data via an impersonated individual without permission; or
2.4.12. access the Services for purposes of monitoring its availability, penetration
or security testing, or any benchmarking or competitive purposes.
2.5. Customer Responsibilities. Customer will be responsible for the configuration
and operation of the Services; and will use the Services only in accordance with
the appropriate documentation and applicable law. Customer shall: (i) use
commercially reasonable efforts to prevent unauthorized access to, or use of, the
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Services, and will notify PeerNova promptly of any unauthorized use of any
password or account; (ii) report to PeerNova promptly and use reasonable efforts
to stop any unauthorized copying or distribution of Content that is known or
suspected by Customer or Customer’s Users; and (iii) not impersonate another
Services user or provide false identity information to gain access to or use the
Services.
3. Intellectual Property Ownership
3.1. PeerNova. The CRM Software and Services and all software and other
technologies embodied in or used to provide the CRM Software and Services,
including all intellectual property rights embodied therein, are owned exclusively
by PeerNova. The visual interfaces, graphics, design, compilation, information,
data, analytics, computer code (including source code or object code), products,
software, services, and all other elements of the CRM Software and Services
provided by PeerNova (“Materials”) are protected by intellectual property rights
laws and other laws. All Materials included in the CRM Software and Services
are the exclusive property of PeerNova or its third-party licensors. Except as
permitted under this Agreement or as expressly authorized by PeerNova,
Customer may not make use of the Materials. There are no implied licenses in
this Agreement, and PeerNova reserves all rights to the Materials not granted
expressly in this Agreement. The PeerNova name, the PeerNova logo, and the
product names and logos associated with the Services are trademarks of
PeerNova or PeerNova Affiliates.
3.2. Customer. Customer retains all right, title, and interest in and to Customer Data.
PeerNova will not access or use any Customer Data except as necessary to
provide the Services or customer support per Section 11.10 (Customer Support).
PeerNova may evaluate Customer’s use of the Services, which may include
reviewing anonymized Services outputs for industry benchmarking, analytics,
marketing, and other business purposes (“Services Attributes”). For the sake of
clarity, PeerNova may only use these Services Attributes for internal purposes to
improve the Services. PeerNova may use and disclose the aggregated and
anonymized Services Attributes for the foregoing purposes, provided that they do
not include any data that would reveal the identification of Customer, Customer
Data, or any other Customer Confidential Information.
3.3. License by Customer to Use Feedback. We respect and appreciate the
thoughts and comments from our users. If Customer chooses to provide input
and suggestions regarding existing functionalities, problems with, or proposed
modifications or improvements to the Services (“Feedback”), then Customer
hereby grants PeerNova an unrestricted, perpetual, irrevocable, non-exclusive,
fully-paid, royalty-free right and license to exploit the Feedback in any manner
and for any purpose, including to improve the Services and create other products
and services. We will have no obligation to provide Customer with attribution for
any Feedback that Customer provides us.
4. Term and Termination
4.1. Term of Agreement. This Agreement commences on the Effective Date and
continues until all subscriptions hereunder have expired or have been terminated.
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4.2. Term of Purchased Subscriptions. The initial term of each subscription shall
commence on the start date agreed to in the applicable Order Form and continue
for the term specified in the applicable Order Form (the “Initial Term”). In the
case of free trials, notifications provided through the Services indicating the
remaining number of days in the free trial shall constitute notice of termination.
4.3. Renewal. Except as otherwise specified in an Order Form, subscriptions will
automatically renew for additional one year terms, unless either party gives the
other party written notice of non-renewal at least thirty (30) days before the end
of the then-current term. PeerNova will communicate renewal prices at least sixty
(60) days before each Renewal Term and will not increase prices more than 10%
for the existing Services for each year of up to three Renewal Terms. Except as
expressly provided in the applicable Order Form, renewal of promotional
subscriptions will be at PeerNova’s applicable list price in effect at the time of the
applicable renewal. Notwithstanding anything to the contrary, any renewal in
which subscription volume or subscription length for any Services has decreased
from the prior term will result in re-pricing at renewal without regard to the prior
term’s per-unit pricing.
4.4. Termination. Either party may terminate this Agreement, effective on written
notice to the other party, if the other party materially breaches the Agreement
(including non-payment of fees), and such breach: (i) is incapable of cure; or (ii)
being capable of cure, remains uncured thirty (30) days after the non-breaching
party provides the breaching party with written notice of such breach. Upon the
expiration or termination of this Agreement for any reason: (a) any amounts owed
to PeerNova by Customer under this Agreement before such termination will
become immediately due and payable in accordance with Section 5 (Fees and
Payment), (b) PeerNova will terminate Customer’s access to or use of the
Services, and (c) each party will return the other party’s Confidential Information
in accordance with Section 10.4 (Return of Materials). The rights and duties of
the parties under Sections 3 (Intellectual Property Ownership), 4.5 (Payment or
Refund of Fees upon Termination), 6 (Mutual Indemnification), 8 (Disclaimer of
Warranties), 9 (Limitations of Liability), and 11 (Miscellaneous) will survive the
termination or expiration of this Agreement. In no event will termination relieve
Customer of Customer’s obligation to pay any fees payable to PeerNova for the
period prior to the effective date of termination.
4.5. Payment or Refund of Fees upon Termination. If this Agreement is terminated
by Customer in accordance with Section 4.4 (Termination), PeerNova will refund
Customer any prepaid fees covering the remainder of the subscription terms of
all Order Forms after the effective date of termination. If this Agreement is
terminated by PeerNova in accordance with Section 4.4 (Termination), Customer
will pay any unpaid fees covering the remainder of the subscription terms of all
Order Forms. In no event will termination relieve Customer of its obligation to pay
any fees payable to PeerNova for the period prior to the effective date of
termination.
5. Fees and Payments
5.1. Fees. Customer will pay PeerNova all fees specified in the Order Forms. Except
as otherwise specified specified herein or in an Order Form, (i) fees are based on
Services and Content subscriptions purchased and not actual usage, (ii) payment
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obligations are non-cancelable and fees paid are non-refundable, and (iii)
quantities purchased cannot be decreased during the relevant subscription term.
All fees due are payable in U.S. Dollars unless otherwise stated on an Order
Form.
5.2. Invoicing and Payment. PeerNova will issue invoices for the Services on or
about the subscription start date for the Initial Term. Fees for the Services shall
be paid annually in advance. For multi-year Services subscriptions, PeerNova will
invoice to receive payment each year in advance, on the anniversary of the
subscription start date each year. Unless otherwise stated in an Order Form, fees
for the Services are due net 30 days from the invoice date. Customer is
responsible for providing complete and accurate billing and contact information
and notifying PeerNova of any changes to such information. All Services and
Support Services (when applicable) payment obligations are non-cancelable, and
all amounts paid are nonrefundable, except as expressly set forth in this
Agreement.
5.3. Overdue Charges. If any invoiced amount is not received by PeerNova by the
due date, then without limiting PeerNova’s rights or remedies, (a) those charges
may accrue late interest at the rate of 2% of the outstanding balance per month,
or the maximum rate permitted by law, whichever is lower, and/or (b) PeerNova
may condition future subscription renewals and Order Forms on payment terms
shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Delinquent Accounts. Without limiting PeerNova’s rights or remedies,
PeerNova may suspend or terminate access to the Services, including fee-based
portions of the Service, for any account for which any amount is 30 days or more
overdue. In addition to the amount due for the Services, a delinquent account will
be charged with fees or charges that are incidental to any chargeback or
collection of any unpaid amount, including collection fees. PeerNova will give
Customer at least 10 days’ prior notice that its account is overdue before
suspending the Services to Customer.
5.5. Payment Disputes. PeerNova will not exercise its rights under Section 5.3
(Overdue Charges) or Section 5.4 (Delinquent Accounts) if Customer is disputing
the applicable charges reasonably and in good faith and is cooperating diligently
to resolve the dispute.
5.6. Taxes. All fees payable by Customer under this Agreement are exclusive of
taxes, levies, duties, or similar governmental assessments of any nature,
including, for example, value-added, sales, use or withholding taxes, assessable
by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for
paying all Taxes associated with its purchases hereunder. If PeerNova has the
legal obligation to pay or collect Taxes for which Customer is responsible under
this section, PeerNova will invoice Customer and Customer will pay that amount
unless Customer provides PeerNova with a valid tax exemption certificate
authorized by the appropriate taxing authority.
6. Mutual Indemnification
6.1. Customer’s Indemnity. To the fullest extent permitted by law, Customer is
responsible for Customer’s use of the Services, and Customer will defend and
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indemnify PeerNova, its Affiliates, and their respective shareholders, directors,
managers, members, officers, employees, consultants, and agents (together,
the “PeerNova Entities”) from and against every claim brought by a third party,
and any related liability, damage, loss, and expense, including attorneys’ fees
and costs, arising out of or connected with:
6.1.1. Customer’s unauthorized use of, or misuse of, the Services;
6.1.2. Customer’s violation of any portion of this Agreement, any
representation, warranty, or agreement referenced in this Agreement,
or any applicable law or regulation;
6.1.3. Customer’s violation of any third-party right, including any intellectual
property right or publicity, confidentiality, other property, or privacy right;
or
6.1.4. any dispute or issue between Customer and any third party.
6.2. PeerNova’s Indemnity. If any action is instituted by a third party against
Customer arising out of, or in connection with a claim that the Services, as
provided, infringe a copyright, registered patent or trademark, then PeerNova
shall indemnify and hold Customer harmless from and against any and all costs,
damages, losses liabilities and expenses (including reasonable attorneys’ fees
and costs) arising out of, or in connection with such claim and will defend such
action at its own expense on behalf of Customer and will pay all damages
attributable to such claim which are finally awarded against Customer or paid in
settlement of such claim. PeerNova will, at its option and expense, and in
addition to indemnifying Customer as set forth in this section: (a) procure for
Customer the right to continue using the Services; (b) replace or modify the
Services so that they are no longer infringing but continue to provide comparable
functionality; or (c) terminate this Agreement and Customer’s access to the
Services and refund any amounts previously paid for the Services attributable to
the remainder of the then-current term of this Agreement. PeerNova 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
Services: (i) after they have been modified by Customer or a third party without
PeerNova’s prior written consent, or (ii) in combination with any other service,
equipment, software or process not provided by PeerNova where the
combination is the basis for the infringing activity. THIS SECTION SETS FORTH
THE ENTIRE OBLIGATION OF PEERNOVA AND CUSTOMER’S EXCLUSIVE
REMEDY AGAINST PEERNOVA FOR ANY INFRINGEMENT CLAIM.
6.3. Procedure. A party seeking indemnification under this Section 6 will: (a) give
written notice of the claim promptly to the other party; (b) give the other party sole
control of the defense and settlement of the claim; and (c) provide the other party
all available information and assistance.
7. Representations and Warranties
7.1. Mutual Warranty. Each party represents and warrants that it has the legal power
and authority to enter into this Agreement.
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7.2. Data Warranty. Customer represents and warrants that Customer owns or has
obtained all rights, consents, permissions, or licenses necessary to allow the
access to, or possession, manipulation, processing, or use of the Customer Data
by the Services.
7.3. Services Warranty. PeerNova represents and warrants that the Services will
perform in material aspects with the applicable Documentation provided at
https://help.peernova.com/cuneiform/crm/. PeerNova may revise certain features
or functions of the Services at any time provided that PeerNova shall not
materially reduce the functionality of the Services.
8. Disclaimer of Warranties
8.1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES
AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES
ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PEERNOVA
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND
CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (A) ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B)
ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR
TRADE. PEERNOVA DOES NOT WARRANT THAT THE SERVICES OR ANY
PORTION OF THE SERVICES, OR ANY MATERIALS OR CONTENT OFFERED
THROUGH THE SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE
OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND
PEERNOVA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE
CORRECTED.
8.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED
BY YOU FROM THE SERVICES OR PEERNOVA ENTITIES OR ANY
MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL
CREATE ANY WARRANTY REGARDING ANY OF THE PEERNOVA ENTITIES
OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS.
WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM
THE SERVICES AND YOUR DEALING WITH ANY OTHER SERVICES USER.
YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE
SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT
RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING
YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION
WITH THE SERVICES) OR ANY LOSS OF DATA, INCLUDING USER
CONTENT.
8.3. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 8
(DISCLAIMERS OF WARRANTIES) APPLY TO THE FULLEST EXTENT
PERMITTED BY LAW.
8.4. PEERNOVA DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT
THAT PEERNOVA IS PROHIBITED FROM DISCLAIMING UNDER
APPLICABLE LAW.
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9. Limitations of Liability
9.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE
PEERNOVA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING
DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER
INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO
OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR
ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON
WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR
ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PEERNOVA
ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
9.2. TOTAL LIMIT ON LIABILITY. TO THE FULLEST EXTENT PERMITTED BY
LAW, THE AGGREGATE LIABILITY OF THE PEERNOVA ENTITIES TO YOU
FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY
INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE
UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE,
IS LIMITED TO THE AMOUNT YOU HAVE PAID TO PEERNOVA FOR ACCESS
TO AND USE OF THE SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT
OR CIRCUMSTANCE GIVING RISE TO THE CLAIM.
9.3. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A
LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION
OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS
BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS
AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE
PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND
INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE
LIMITATIONS IN THIS SECTION 9 (LIMITATIONS OF LIABILITY) WILL APPLY
EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.4. FREE SERVICES AND FREE TRIAL LIMITATION OF LIABILITY. THIS
SECTION 9.5 SUPERSEDES ANY OTHER INDEMNIFICATION OR LIMITATION
OF LIABILITY TERMS IN THIS AGREEMENT FOR CUSTOMER IF THIS
AGREEMENT IS AGREED UPON FOR A FREE SERVICE, BETA SERVICE OR
FREE TRIAL. THIS SECTION DOES NOT APPLY TO PAID SUBSCRIPTIONS
AND SHALL NOT APPLY ONCE A FREE TRIAL BECOMES A PAID
SUBSCRIPTION. IN NO EVENT SHALL PEERNOVA BE LIABLE TO
CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF
REVENUE OR PROFITS, DATA, OR DATA USE, ARISING OUT OF OR
RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR
OTHERWISE, EVEN IF PEERNOVA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PEERNOVA’S
TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT FOR ALL
DAMAGES EXCEED THE AMOUNT OF $100.
10. Confidentiality
10.1. “Confidential Information” of a party means any confidential or proprietary
knowledge, information, materials, or trade secrets in which such party has
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rights, disclosed to the other party (“Receiving Party”), and which either party
would reasonably expect or consider confidential or proprietary information,
including but not limited to, information regarding business methods, products,
services, finances, customers and potential customers, suppliers, pricing and
rates, costs, expenses, marketing, technologies, properties, specifications,
personnel, or organization, in various media, including but not limited to, oral,
written, and electronic data form. Without limitation of the foregoing, PeerNova’s
Confidential Information includes the CRM Software and Services and any other
technical and commercial information related thereto.
10.2. Each Receiving Party: (i) shall treat as strictly confidential all Confidential
Information disclosed by the other party (the “Disclosing Party”); (ii) shall not
disclose, disseminate, distribute, or transfer such Confidential Information to any
third party other than Receiving Party’s personnel with a need to know such
information for this Agreement and who are bound by written obligations of
confidentiality no less restrictive than this Agreement without written consent of
Disclosing Party; (iii) shall not use such Confidential Information except solely for
its performance under this Agreement; and (iv) shall protect the Confidential
Information by using at least the same care as the Receiving Party uses to
protect its own confidential information of like nature to prevent any unauthorized
access, use, dissemination, or publication of such Confidential Information, but in
no event less than reasonable care. The Receiving Party shall promptly notify the
Disclosing Party in writing if the Receiving Party learns of any unauthorized
access, use, dissemination, or publication of such Confidential Information.
10.3. Compelled Disclosure. Upon prior written notice (to the extent legally
permissible) to the Disclosing Party, the Receiving Party may disclose Disclosing
Party’s Confidential Information to the extent: (i) required by law or regulation to
be disclosed; or (ii) required by order of a court or other governmental body. The
Receiving Party agrees to assist the Disclosing Party (at the Disclosing Party’s
expense) in all proper ways to limit or prevent the disclosure of such Confidential
Information, and to obtain confidential treatment for any information so disclosed.
10.4. Return of Materials. The Receiving Party will return or destroy (at the Disclosing
Party’s election) all Confidential Information (including all copies) received from
the Disclosing Party within its possession, custody, or control promptly upon
termination or expiration of this Agreement or upon the earlier written request of
the Disclosing Party. At the request of the Disclosing Party, after such return or
destruction, the Receiving Party shall certify in writing that such return or
destruction has been accomplished.
10.5. Exceptions. Confidential Information does not include information which as
evidenced in writing by the Receiving Party: (i) is known to the Receiving Party or
later received from a third party, in each case with no confidentiality restriction; or
(ii) is publicly known or becomes publicly known and made generally available
through no wrongful act of the Receiving Party.
11. Miscellaneous
11.1. Entire Agreement and Order of Precedence. This Agreement, together with
any associated Order Forms, is the entire agreement between PeerNova and
Customer and supersedes all prior and contemporaneous agreements, proposals
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or representations, written or oral, concerning its subject matter contained herein,
including any previously executed electronic or URL version of a PeerNova
subscription agreement, commonly known as a clickthrough license agreement.
The parties agree that any term or condition stated in a Customer purchase order
or in any other Customer order documentation (excluding Order Forms) is void.
In the event of any conflict or inconsistency among the following documents, the
order of precedence shall be: (1) the applicable Order Form, (2) this Agreement,
and (3) the Documentation. Titles and headings of sections of this Agreement are
for convenience only and shall not affect the construction of any provision of this
Agreement.
11.2. Governing Law. These Terms are governed by the laws of the State of California
without regard to conflict of law principles. Customer and PeerNova submit to the
personal and exclusive jurisdiction of the state courts and federal courts located
within Santa Clara County, California, to resolve any lawsuit or court proceeding
permitted under these Terms.
11.3. Assignment and Change in Control. 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 or 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 null and
void and have no effect.
11.4. Relationship of the Parties. The parties are independent contractors and this
Agreement does not create any joint venture, partnership, employment, or
agency relationship between Customer and PeerNova.
11.5. Waiver. The failure of either party 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 the other party in writing.
11.6. Severability. 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.
11.7. Force Majeure. 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.
11.8. Consent to Electronic Communications. By using the Services, you consent to
receiving certain electronic communications from us as further described in our
Privacy Policy. Please read our Privacy Policy to learn more about our electronic
communications practices. You agree that any notices, agreements, disclosures,
or other communications we send to you electronically will satisfy any legal
communication requirements, including those communications being in writing.
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11.9. Contact Information. The Services are offered by PeerNova, Inc., located at
2055 Gateway Place, Suite 750, San Jose, CA 95110. You may contact us by
sending correspondence to that address or by emailing us at
sfsupport@peernova.com.
11.10. Customer Support. PeerNova will provide the Support Services and Services
levels described in Exhibit A.
11.11. Export and Anti-Corruption. The CRM Software, Services, Content, other
technology PeerNova makes available, and derivatives thereof may be subject to
export laws and regulations of the United States and other jurisdictions. Each
party represents that it is not named on any U.S. government denied-party list.
Customer shall not permit Users to access or use any CRM Software, Services
or Content in a U.S.-embargoed country or in violation of any U.S. export law or
regulation. Customer has not received or been offered any illegal or improper
bribe, kickback, payment, gift, or thing of value from any of PeerNova’s
employees or agents in connection with this Agreement. Reasonable gifts and
entertainment provided in the ordinary course of business do not violate the
above restriction. If Customer learns of any violation of the above restriction,
Customer will use reasonable efforts to promptly notify PeerNova at
ccrm-support@peernova.com.
11.12. Publicity. Neither party shall issue or release any announcement, statement or
press release relating to this Agreement without obtaining the express prior
written consent of the other party. Notwithstanding the foregoing, Customer
consents to PeerNova using Customer’s name and/or logo in PeerNova’s
marketing materials, including on PeerNova’s website, to identify Customer as a
customer of PeerNova.
12. Definitions:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under
common control with the subject entity. “Control,” for purposes of this definition, means direct or
indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means PeerNova services or functionality that may be made available to
Customer to try at its option at no additional charge and which is clearly designated as beta,
pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means the visual information, documents, software, products and services contained
or made available to Customer in the course of using the Services, other than the Services
itself. Content does not include Customer Data or User Details.
“CRM Software” refers to any Cuneiform for Salesforce product provided by PeerNova and
available to download from the Salesforce AppExchange.
“Customer” means in the case of an individual accepting this Agreement on his or her own
behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a
company or other legal entity, the company or other legal entity for which such individual is
accepting this Agreement, and Affiliates of that company or entity (for so long as they remain
Affiliates) which have entered into Order Forms.
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“Customer Data” means any information (including without limitation personally identifiable
information) provided, made available, or submitted by Customer to the Services or retrieved by
the Services from another source as directed by Customer other than User Details and
anonymized usage statistics.
“Documentation” means PeerNova’s published documentation, knowledge base articles and
other content, and technotes that are generally made available by PeerNova to all customers,
including without limitation the materials located at https://help.peernova.com/cuneiform/crm/.
“Force Majeure” means events or circumstances beyond a party’s reasonable control, including
without limitation, acts of God, acts of government, flood, fire, earthquakes, pandemics, civil
unrest, acts of terror, strikes or other labor problems (other than those involving PeerNova’s
employees), telecommunications or network failures or delays, service or computer failures
involving services, hardware, or software not within PeerNova’s possession or reasonable
control, and acts of vandalism (including network intrusions and denial of service attacks).
“Free Services” means Services that PeerNova makes available to Customer free of charge.
Free Services exclude Services offered as a free trial and Purchased Services.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including
but not limited to, for example, viruses, adware, spyware, worms, time bombs and Trojan
horses.
“Order Form” means an ordering document or online order specifying the Services to be
provided hereunder, including the subscription term and the subscription fees, that is entered
into between Customer and PeerNova or any of their Affiliates, including any addenda and
supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound
by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under
an Order Form or online purchasing portal, as distinguished from Free Services or those
provided pursuant to a free trial.
“Services” means the products and services that are ordered by Customer under an Order
Form or online purchasing portal, or provided to Customer free of charge (as applicable) or
under a free trial, and made available online by PeerNova, including associated PeerNova
offline or mobile components, as described in the Documentation. “Services” exclude Content.
“User” means Customer’s named employees, representatives, consultants, contractors,
partners, or agents who are authorized to use the Services by Customer through the Salesforce
LMA (License Management Application) or the user management facility of the Services.
“User Details” means the name and email address of Users that PeerNova receives when
Customer grants each of its Users access to the Services.
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Exhibit A
PeerNova Service Level Agreement
This Service Level Agreement (“SLA”) details PeerNova’s commitments in relation to: Services
availability and performance, Support Services, and problem resolution.
1. Definitions
“Business Hours” shall mean, except for recognized national holidays in the United
States, 5am Eastern Time - 5pm Pacific Time.
“Support Services” means technical support assistance provided by PeerNova
personnel to Users for problem resolution, bug reporting, and technical assistance,
which, in each case, is as classified in Section 4 (Problem Response and Resolution),
below.
“Service Level Incident” means a reproducible non-conformity in the Services causing
the Services to not operate in substantial conformance with the Documentation.
2. Support Services. If Customer has paid PeerNova all applicable fees due for the
Services, PeerNova will provide Support Services to Customer’s administrator(s) during
Business Hours in the English language. To receive Support Services, Customer may
submit a case by emailing sfsupport@peernova.com during the specified Business
Hours. Basic Support Services are provided for Customers using Free Services, Beta
Services, or Free Trials. For Customers of Purchased Services, Standard Support
Services, and if purchased, the applicable Premier Support Services will be provided as
described below in this Exhibit A.
3. Severity Levels. Case levels are assigned based on Customer’s description of the issue
and the business impact.
Severity Level Description Example Target Release
Level 1 - Critical One or more key The data profiling Next available
features of the engine is not release via patch,
Services are not producing correct once issue is
working and there are results and it would resolved and
no acceptable risk a project go-live verified.
workarounds with date within one
imminent threat to business week.
near-term business
milestones posing a
financial risk.
Level 2 - High One or more key A report does not Next release or a
features of the display the correct patch, determined
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Services are not information, but the by PeerNova based
working, where a underlying data can on number of
workaround delivering be retrieved from the customers impacted.
the same outcomes is data model.
available.
Data Governance
attributes are not
being captured in
the data model but
are accessible
through setup tree
reporting options.
Level 3 - Medium A Services feature is A data profiling job A future release,
working but with that historically took timing TBD, based
inconsistent 10 minutes is taking on frequency of
performance levels or longer than an hour. occurrence, root
raising usability cause, and
concerns. quantifiable impact.
4. Problem Response and Resolution. PeerNova will address Service Level Incidents
and other non-Service Level Incident support requests in accordance with the schedule
below.
Case Severity Basic Standard Premier
Initial Level 1 Best effort 1 business hour 1 business hour.
Response
Tier and Daily updates Updates every 4
Case hours
Update
Frequency Level 2 Best effort 1 business day 4 business
hours
Weekly updates
Daily updates
Level 3 Best effort 3 business days 1 business day
No updates Updates as
information
changes.
5. Customer acknowledges that the Services are dependent on Customer’s implementation
and configuration of the Services and the availability and performance of technology
from third-party software and hardware vendors, including but not limited, to
salesforce.com, Salesforce AppExchange products and custom applications, and the
providers of Internet browsers. PeerNova has no control over, and is not liable for,
performance issues or downtime of the Services to the extent caused by such factors.
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