VOCALCOM GENERAL TERMS AND CONDITIONS

Transcription

1 BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THE TERMS IN THE CASE OF A "FREE TRIAL" SUBSCRIPTION OFFER OF VOCALCOM, OR WITH A PURCHASE ORDER REFERRING TO THESE GENERAL TERMS AND CONDITIONS, IN THE CASE OF A PAYING SUBSCRIPTION, YOU ( CLIENT ) AGREE TO BE BOUND BY 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 AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITION. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. WHEREAS, CLIENT acknowledges that (i) prior to entering into this Agreement, it has received all necessary information, (ii) is aware that the Services are standard, (iii) it has been provided with and checked all of the documents defined hereinafter which constitute the Agreement and (iv) it satisfies itself as to the environment and internal skills and means which are required for the use of the Services as defined hereinafter. CLIENT acknowledges that (i) the Services integrate SFDC Service of Salesforce.com, which is subject to specific terms and conditions as defined in exhibit 1 to the General Terms and Conditions, and (ii) the validity and the continuance in force of the agreement relating to the marketing of the SFDC Service between VOCALCOM and Salesforce.com is a prerequisite to the entry into force and the validity of this Agreement. 1. Definitions Agreement: (i) Free Trial: the General Terms and Conditions accepted by CLIENT, pursuant to the conditions defined hereby; (ii) Paying subscription: the documents defined hereafter, provided to CLIENT prior to entering into this Agreement and accepted by CLIENT unreservedly by signing the Purchase Order, by decreasing order of priority, with the first-listed prevailing over the following documents in the event of a conflict or inconsistency: - the Purchase Order and its exhibits if any; - the General Terms and Conditions and their exhibit 1. Application: the most recent version of the Hermes solution, in English language and in executable object code, intended to be used by CLIENT via the Internet as part of the Services exclusively, the Documentation, and the Updates provided to CLIENT as part of the Services. AppExchange: the online directory of on-demand applications that work with the Service, located at or at any successor websites. Authorized Number of Users: the number of Users authorized to access and use the Services as defined in the Purchase Order, for which the subscription of corresponding Users was performed pursuant to that Purchase Order. CLIENT: the legal entity identified in the Purchase Order, represented by an individual duly authorized to sign the Agreement. CLIENT Data: all the information processed by CLIENT and/or Users within the framework of the use of the Services. Connection Data: the login and password corresponding to each User, which enable the access to the Services. Documentation: the English version of the User guide of the Services online and/or in electronic format, in English language, comprising basic instructions for the use of the Services. Effective Date: the date of entry into force of the Agreement, either the date of the acceptance of the GTC in the case of the Free Trial and/or the date of the acceptance of the Purchase Order, in the case of the paying subscription. Environment: the technical pre-requisites and all evolutions thereof throughout the term of the Agreement, which correspond to CLIENT s computer equipment (hardware, operating system, databases, third party software, subscription to an Internet access service), required for the launching and use of the Application and in general, for the provision of the Services and for which CLIENT recognizes to have been informed; it being agreed that CLIENT shall be responsible for the purchase of the Environment and its changes, in particular of the licences relating to third party software and their related maintenance. Free Trial: the right to access to the free Services under the terms and conditions of the Agreement. General Terms and Conditions/GTC: this document, and its exhibit 1 relating to the terms and conditions relating to SFDC Service. Laws and Regulations on Data Protection: the laws and regulations applicable in the European Union, European Economic Area and their Member States, relating to the processing of Personal Data, including but not limited to the Data Protection Act 1998 of England and Wales. 1/13

2 Malicious Code: viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. New Version: a version of the Application which contains new functionalities and Updates, given that additional modules are not included in a New Version. Party(ies): individually VOCALCOM or CLIENT, collectively VOCALCOM and CLIENT. Personal Data: CLIENT Data concerning an identified or identifiable individual. Purchase Order: the document which identifies CLIENT, as a contracting Party, the Services, the Authorized Number of Users, Units and the Related Services if applicable, and the related financial conditions, and which expressly refers to the GTC. Any order - to be a Purchase Order - shall be signed by both Parties. Related Services: the related services provided by VOCALCOM if any, as defined in the Purchase Order, in particular the provision of Units and/or a storage service, subject to the terms of the Agreement, unless otherwise stated in the Purchase Order. Services: the selected service, (i) under a Free Trial subscribed online by CLIENT or (ii) a Purchase Order giving access to the Application, which is available by VOCALCOM online via Connection Data and SFDC Service (subject to specific provisions thereto), by connecting to salesforce.com, including associated offline components. Services Opening: the date VOCALCOM carries out the creation of an access to the Services for the benefit of CLIENT which can connect to them, through Connection Data. SFDC Service: Salesforce.com service including in particular AppExchange, and the online service platform provided by Salesforce.com to VOCALCOM for purposes of providing the Services to CLIENT. Unit(s): the communication credit(s) which allow(s) CLIENT to make external phone calls through the Services to fixed and mobile phones, and to the countries listed in the Purchase Order. Update(s): the update of the Application which contains bug corrections and/or enhancements of the Application in comparison with the previous update, provided to CLIENT when available, to the exclusion of any New Version and/or additional module. User(s): any individual placed under the responsibility of CLIENT (including employees, agents, contractors, representatives), authorized by CLIENT to use the Services, in strict accordance with the terms and conditions of the Agreement, which is the holder of a password and a login, and for which CLIENT has made the subscription of the corresponding Users. VOCALCOM: Vocalcom UK Ltd, company n and whose registered office address is 21 Holland Park Gardens - London - W14 8DZ Company n Purpose 2.1 The purpose of the Agreement is to define the terms and conditions whereby VOCALCOM provides CLIENT - pursuant to each Purchase Order - with a personal and non-exclusive access right to the Services and, if applicable, to Units and/or any other Related Services. 2.2 Under the paying subscription, the signature of a Purchase Order is considered as a firm order of the Services, and the Related Services if any, for the initial term as defined in the Purchase Order. Subject to an additional Purchase Order, the Parties may extend the scope of the Services, and the Related Services, if any. Such additional Purchase Order will give rise to a separate invoice, in accordance with the applicable pricing set forth therein on the corresponding order date, except as otherwise stated in the Agreement; it being repeated that the conclusion of a Purchase Order entails the acceptance of the GTC, without reservation. 3. Pre-requisites 3.1 Environment. CLIENT is responsible for the prerequisites required by the Environment as defined in the Application, and generally required to run the Services, notably the subscription to an Internet service, which are not included in the Services. In general, CLIENT shall have the technical means - in particular telecommunications means - to run the Services properly. In addition, CLIENT acknowledges that the Updates and/or the change of the Services may require the modification of the Environment, it being agreed that, to the extent possible, VOCALCOM shall inform CLIENT. CLIENT acknowledges that any configuration which does not comply with the Environment may alter the quality of the Services, or even lead to their malfunctioning, for which, under no circumstances, may VOCALCOM be liable. 2/13

3 3.2 SFDC Services. By subscribing to the Services, CLIENT agrees to be bound, without reservation, by the terms and conditions of the SFDC Services as described in exhibit 1 of the GTC. 4. CLIENT s declarations CLIENT declares that it has thorough knowledge of the Internet, its characteristics and its limits. In particular, CLIENT acknowledges that (i) the technical reliability of the transmission of data through the Internet is relative, since they circulate on heterogeneous networks whose characteristics and technical capacities are diverse, and which are - from time to time - overloaded and/or may be subject to dysfunctions, (ii) CLIENT s equipment is connected to the Services under its sole responsibility, (iii) the data communicated through the internet - notwithstanding the existing protection means implemented by VOCALCOM - may be subject to possible rerouting; consequently the communication of CLIENT Data and more generally any information, is made at CLIENT s own risk and under its sole responsibility, (iv) CLIENT is responsible for the security relating to the operation of the Application and the access to the Services, which are under its sole control, notably, in order to avoid unauthorized third parties intrusions and to endanger the security measures relating to the Services, as implemented by VOCALCOM and Salesforce.com and (v) since Users have access to the Application, such Application and the Services may - despite VOCALCOM s security measures - be subject to unauthorized third parties intrusions, and thus, be corrupted. 5. Free Trial: specific provisions The following provisions shall apply to the Free Trial: VOCALCOM provides the Services to CLIENT on an online trial free basis, on the Salesforce.com website AppExchange ( or any other address indicated by VOCALCOM, until the first of the two following dates: (i) the thirtieth day following the acceptance of the Agreement by CLIENT, or (ii) the starting date of the paying subscription to the Services by CLIENT; it being agreed that the acceptance of the GTC by clicking the relating box means acceptance of the Agreement for the Free Trial. During the Free Trial, the Authorized Number of Users is limited to five (5), and CLIENT grants Units for a value of one (1) hundred euros, excluding tax. It is expressly agreed that all Units are deemed consumed at the end of the Free Trial, and therefore may not be carried forward or otherwise compensated. Any data entered into the Services by CLIENT and/or any customization made to the Services by or for CLIENT during the Free Trial will be definitively lost unless CLIENT (i) purchases a subscription to the same Services as those covered by the Free Trial or to expended Services, or (ii) exports its data, in each case before the end of the Free Trial. CLIENT may not transfer the data entered into the Services and/or customizations made during the Free Trial to a service that would be less in scope than the Services under the Free Trial; in this case, CLIENT must export its data before the end of the Free Trial, or its data will be permanently lost. DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED AS-IS WITHOUT ANY WARRANTY (IN PARTICULAR IN TERMS OF QUALITY AND AVAILABILITY OF THE SERVICES), AT THE ENTIRE AND SOLE LIABILITY OF CLIENT AND AT ITS OWN RISK; VOCALCOM DISCLAIMS ANY LIABILITY DURING THE FREE TRIAL. Except as otherwise specified in this section 5, the use of the Services during the Free Trial is governed by the other terms and conditions of the GTC. 6. Implementation and operation of the Services 6.1 Services Opening and provision of the Services. Subject to the conclusion of a Purchase Order duly accepted by VOCALCOM, or of the GTC in the case of the Free Trial, VOCALCOM shall proceed to the Services Opening, and give access to CLIENT for the term of the Free Trial or the term indicated in the Purchase Order in the case of a paying subscription, according to the terms of the Agreement. It is expressly agreed that the Services Opening may not be performed within a delay less than forty-eight (48) U.K working hours following the acceptance of the Purchase Order by VOCALCOM. CLIENT shall be responsible for the creation of the Connection Data, their attribution to Users and their use; it is understood that any access to the Services with the Connection Data is deemed made by any of the Users for which CLIENT is responsible. VOCALCOM disclaims all liability for any irregular or fraudulent use of the Connection Data. CLIENT acknowledges and agrees that access to the Services is conditioned upon payment of the related invoices in the case of a paying subscription. 6.2 Users subscription. Unless otherwise specified in the applicable Purchase Order, (i) Services are purchased as Users subscriptions and may be accessed by no more than the Authorized Number of Users as indicated in the corresponding Purchase Order, (ii) additional Users subscriptions may be added during the term of the Purchase Order, at the same pricing as for the pre-existing 3/13

4 subscription under such Purchase Order, prorated for the remainder of the subscription term in effect at the time of the current Purchase Order relating to the additional Users subscriptions, and (iii) the additional Users subscriptions shall terminate on the same date as the pre-existing Users subscriptions. A User subscription is for one (1) User as defined in the GTC only, and cannot be shared or used by more than one (1) User; however, such User subscriptions may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. 7. Units and other Related Services 7.1 Within the framework of the use of the Services and throughout the term of the Agreement, VOCALCOM may provide Units to CLIENT, as stated in the Purchase Order, if applicable; it is agreed that to be valid, any order of Units must be duly accepted by VOCALCOM. It is expressly agreed that any order of Units is firm and non-cancellable. CLIENT shall use Units for its sole internal use as part of the Services, and shall not offer them for resale by any means whatsoever, without the prior written consent of VOCALCOM. 7.2 During the term of the Agreement, VOCALCOM may provide other Related Services, in particular storage services, under the applicable price conditions on the date of the related Purchase Order. Any Purchase Order accepted by VOCALCOM is considered as a firm order of the Related Services. 8. Rights granted 8.1 Use of the Services. VOCALCOM grants CLIENT a personal and non-exclusive right to access and use the Services, within the limit of the Authorized Number of Users pursuant to the Agreement and in particular of the Purchase Order in the case of a paying subscription, for its own needs and within the limit of the storage capacity as defined in the Documentation; the Application and the SFDC Services shall not be used outside the framework of the Services. In this context, CLIENT shall strictly comply with the terms of the Agreement, in particular with exhibit 1, the Documentation requirements, and - if any - additional indications by VOCALCOM and/or its licensors. 8.2 Rights reserved. No rights are granted to CLIENT hereunder other than as expressly set forth herein. VOCALCOM and/or its licensors reserve(s) all rights, titles, and interest in and to the Services, including all related intellectual property rights. 8.3 Restrictions. Except as permitted by the applicable law or otherwise stated in the Agreement, CLIENT shall not (i) permit any third party to access the Services, unless otherwise stipulated in the Agreement, and in particular sell or rent the Services, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on CLIENT intranets or otherwise for CLIENT s own internal business purposes, (iv) reverse engineer the Application, (v) access the Services in order to (a) build a competitive product or service or (b) copy any features, functions or graphics of the Services, or (vi) use the Services in order to store or transmit Malicious Code and/or infringing, libellous, or otherwise unlawful or tortious material. 8.4 CLIENT Application and code. If CLIENT, a third party acting on CLIENT s behalf, or a User creates applications or program code using the Services, CLIENT authorizes VOCALCOM - on a free basis - to host, copy, transmit, display and adapt such applications and program code, solely as necessary for VOCALCOM to provide the Services in accordance with this Agreement; it is agreed that CLIENT and/or its licensors retain(s) all intellectual property rights relating to these applications and programs code. 8.5 CLIENT Data. Subject to the limited rights granted by CLIENT hereunder, CLIENT is solely owner of its Data, including, if any, all intellectual property rights therein. 9. Quality of the Services and availability of the Application 9.1 Within the framework of the Services, and subject to exhibit 1, VOCALCOM shall provide CLIENT, at no additional charge, HERMES standard technical support service (and/or upgraded support subject to specific conditions, if purchased separately), the purpose of which is to use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for (a) planned downtime (of which VOCALCOM shall use commercially reasonable efforts to provide CLIENT with at least eight (8) hours notice via the Services and which VOCALCOM shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Sunday, U.K time), or (b) any unavailability caused by circumstances beyond the reasonable control of VOCALCOM, including without limitation, force majeure as defined in the Agreement, and in particular Internet service provider failures or delays. Notwithstanding the above provision, VOCALCOM may exceptionally interrupt the access to the Application for the purpose of maintenance operations, without liability. 4/13

5 9.2 Update Services. VOCALCOM shall provide CLIENT with access to the Updates when available. The Update Services do not include (i) any software and/or module which is not expressly covered by the Agreement, and (ii) any other configuration of CLIENT which differs than the Environment. VOCALCOM reserves the right to modify temporarily or permanently the Application in whole or in part, notably for enhancement purposes. Within this context, VOCALCOM may take into account CLIENT s suggestions, enhancement requests, recommendations, or other advice provided by CLIENT or Users relating to the performance of the Services - in particular relating to the evolution of the Application or additional functionalities - provided that such requests may be applied generally and marketed to all VOCALCOM clients. In such an event, the Parties expressly agree that VOCALCOM shall be the exclusive owner of all the intellectual property rights relating to the corresponding developments. 10. Intellectual property 10.1 The Application whose access is provided as part of the Services is and remains the exclusive property of VOCALCOM and/or its licensors. Consequently, CLIENT is not granted any other right than to use the Application within the limits provided under the Agreement. The Agreement does not include any license or right on the Application s trademarks and/or related domain name and/or any other identification notices which appear in/on the Application and/or the Site. CLIENT shall maintain intact all the copyright, trademark and other proprietary notice which appear on and in the Application, in the Documentation, and in general in the framework of the Services, and in any copy - partial or whole - of any component thereof, subject to compliance with the provisions of the Agreement. VOCALCOM shall retain all the rights relating to the tools, methods and/or know-how used or performed under the Agreement. All intellectual property rights relating to the results of any services provided by VOCALCOM under the Agreement shall remain VOCALCOM s exclusive property VOCALCOM will defend CLIENT, at VOCALCOM s own expense, against any third-party claim that the possession and use of the Application in accordance with the terms of the Agreement infringe the intellectual property rights of a third party (each a Claim ), provided that CLIENT notifies VOCALCOM in writing of any such Claim as soon as it occurs, does nothing to prejudice VOCALCOM s ability to defend or negotiate the settlement of any such Claim, enables VOCALCOM to have sole control over the defence and any negotiation of a settlement of such Claim, and reasonably cooperates with VOCALCOM, as requested by VOCALCOM, in connection with the defence and settlement of such Claim. In the event any Claim is filed against CLIENT in connection with the use of the Application, or if VOCALCOM deems that a Claim is likely to be asserted, VOCALCOM may, at its sole option and own expense, either obtain for CLIENT the right to continue the use of the Application or replace or modify the infringing component of the Application in order to stop to such alleged infringement. In addition to VOCALCOM s defense obligations above, VOCALCOM will indemnify CLIENT for any damages which CLIENT may be ordered to pay by a court of competent jurisdiction in connection with any Claim, as soon as such decision has become final and enforceable, as well as for any reasonable costs and expenses paid by CLIENT for its defence, including reasonable legal fees, within the limit defined in section 13.1; it being agreed that this section constitutes CLIENT s exclusive remedy and VOCALCOM only liability in respect of third party intellectual property right claims pertaining to the Application THIS SECTION 10 STATES VOCALCOM S ENTIRE LIABILITY AND CLIENT S SOLE REMEDY AS TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER PROPRIETARY RIGHTS. CLIENT ACKNOWLEDGES AND AGREES THAT VOCALCOM SHALL IN NO EVENT BE HELD LIABLE BEYOND WHAT IS PROVIDED IN THIS SECTION 10. CLIENT will indemnify and defend VOCALCOM and its licensors - upon VOCALCOM s demand - against all claims of third parties relating to the intellectual property rights relating to all elements communicated or transferred by CLIENT within the scope of the Agreement, and CLIENT undertakes to bear all damages arising from or relating to such elements. 11. Financial conditions 11.1 Services. CLIENT shall pay all fees specified in all Purchase Orders. Except as otherwise specified in the Agreement, (i) fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are nonrefundable, and (iii) the number of Users subscriptions purchased cannot be decreased during the relevant subscription term stated on the Purchase Order. Users subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary date. Consequently, fees for Users subscriptions added throughout a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. Fees for Services will be charged in advance on a yearly basis, and in accordance with the relevant Purchase Order. Unless otherwise stated in a Purchase Order, the fees are due thirty (30) days from the invoice date Units. CLIENT shall pay the fees related to Units as set forth in the Purchase Order, it being agreed that a Unit is deemed to be used, as of the first second from picking up to hanging up. Except as otherwise stated in the Purchase Order, CLIENT shall pay as 5/13

6 a deposit and upon the signature of the Purchase Order an amount equal to the estimated amount for one (1) month's average consumption of Units; it being agreed that this amount will be reevaluated and charged to CLIENT as soon as the average consumption during a month exceeds the amount of the above deposit. CLIENT acknowledges and agrees that the price list related to Units may be subject to changes throughout the performance of the Agreement, depending on, notably, the fees applied by the different telecommunications operators and/or on the country corresponding to CLIENT s activity; it is agreed that VOCALCOM shall make available to CLIENT changes in applicable rates throughout the term of the Agreement. Payments that are due and/or made in accordance with the Agreement shall remain due and/or kept by VOCALCOM, except as otherwise stated in the Agreement. It is expressly agreed by the Parties that Units not used at the termination of the Agreement are forfeited and shall not be subject to any carry-forward, compensation, or reimbursement. Except as otherwise stated in the Purchase Order, payments for Units are made on a monthly basis to the bank account indicated by CLIENT in the Purchase Order Common provisions. All prices set forth in the Agreement are stated exclusive of all customs duties and taxes, which will be for the account of CLIENT of and payable additionally by CLIENT. Sales taxes or similar taxes shall be charged at the rate ruling at the tax point (being the date of the invoice). Any amount not paid when due shall bear interest at the current rate set out under the Late Payment of Commercial Debts (Interest) Act 1998 as amended. In addition, VOCALCOM may, at its sole option, withhold the performance of the Services and the Related Services ten (10) days after formal notice which has remained without effect, without prejudice to any damages and indemnification to which VOCALCOM may be entitled. Such suspension shall not to be deemed as a breach of its contractual obligations by VOCALCOM. CLIENT shall bear the costs and the consequences of such withholding of performance, notably the price increases and the delays in performance. CLIENT is responsible for providing complete and accurate billing and contact information to VOCALCOM and notifying VOCALCOM of any changes to such information before the 20 th of the then current month. CLIENT s undertaking to pay the ordered Units is firm and irrevocable. Payments that are due and/or made in accordance with the Agreement shall remain due and/or kept by VOCALCOM, except as otherwise stated in the Agreement. In addition, VOCALCOM may require shorter payment terms than those stated in the Agreement, as part of the renewal of the Services and/or any other order Expenses. Out-of-pocket expenses related to travel and similar expenses incurred by VOCALCOM in connection with the performance of the Agreement shall be invoiced on a monthly basis and at their effective costs, upon presentation of the relevant receipts Related services. Upon CLIENT s request, VOCALCOM may provide CLIENT with other services related to the Services, notably regarding the support to the implementation of the Services or the training. Such services shall be subject to specific quotations and/or contracts as well as separate invoices. 12. Warranties 12.1 VOCALCOM represents and warrants that (i) it owns the necessary rights to enter into the Agreement and to provide the Services, (ii) such Services shall be supplied in accordance with accepted industry standards and the terms of the Agreement and (iii) the Application performs in all material respects the essential functions described in the Documentation, when used normally with the Environment, (iv) VOCALCOM undertakes to comply with applicable Laws and Regulations on Data Protection, (v) VOCALCOM shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of CLIENT Data within its hosting and information processing system; it being specified that the information relating to the CLIENT Data storage are defined in the Documentation. VOCALCOM does not warrant that (i) the functionalities contained in the Application will meet CLIENT s needs, or (ii) the performance of the Services will be uninterrupted or free from bugs, errors or any other defect, and/or (iii) the results obtained from the use of the Services Regarding the sale of Units, CLIENT acknowledges that they are purchased by VOCALCOM from telecommunication operators, which are the producers of Units. As a consequence, Units shall be provided without any warranty of any kind from VOCALCOM. 6/13

7 12.3 CLIENT warrants that (i) it owns the rights required for the execution of the Agreement, (ii) CLIENT shall comply with any applicable Laws and Regulations on Data Protection, when collecting, compiling, storing, consulting and processing any Personal Data used within the framework of the Services, and in general with all applicable laws and regulations CLIENT acknowledges that prior to entering into this Agreement, it has received all necessary information and advice from VOCALCOM to evaluate the Services and that in this respect, VOCALCOM has duly fulfilled its pre-contractual obligation of information. In addition, CLIENT acknowledges that in the present state of the technology - notably the exclusion of a warranty by of telecommunications operators - the permanent availability of the Services cannot be warranted. It is expressly stated that under no circumstances shall VOCALCOM be held liable for any damage resulting from the wrongful performance of the services provided by such operators. In particular, VOCALCOM does not warrant (i) that telecommunications while using Units will not be disturbed or interrupted, and/or (ii) the quality of the telecommunications while using Units DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 13. Liability, insurance 13.1 VOCALCOM shall make all reasonable efforts to perform its obligations as part of the Services provided under the Agreement. The Parties expressly agree that notwithstanding the nature and/or the cause for action (i) VOCALCOM shall only be liable for direct losses, provided that CLIENT has established a direct causal link between the alleged damage and the evidence of a breach of the Agreement by VOCALCOM; (ii) VOCALCOM SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY CLIENT, ITS USERS AND/OR A THIRD PARTY FOR INTERRUPTED PERFORMANCE OF THE SOFTWARE, OR LOSS OF OR CORRUPTION TO DATA, FILES AND/OR PROGRAMS, OR LOSS OF PROFITS, OR LOSS OF REVENUE OR LOSS OF GOODWILL OR REPUTATION AND/OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR PUNITIVE DAMAGES, EVEN IF VOCALCOM HAS BEEN NOTIFIED OF THE LIKELIHOOD OF ANY SUCH LOSSES OR DAMAGES; and (iii) VOCALCOM s aggregate liability throughout the overall term of the Agreement shall in no event exceed the amount paid by CLIENT to VOCALCOM for the Services during the twelve (12) months preceding the date on which the event at the origin of the damage arose if the Services are at the origin of such damage, or the amount paid by CLIENT to VOCALCOM for Units during the twelve (12) months preceding the date on which the event at the origin of the damage arose if Units are at the origin of such damage. In addition, CLIENT is responsible for (i) the choice of the Services, their use and their results, and the compliance with the terms of the Agreement by the Users and (ii) any damages resulting from an unauthorized or non compliant use of the Services and/or of any incorrect or incomplete information provided by CLIENT to VOCALCOM Under no circumstances, shall VOCALCOM be held liable in case of (i) modification of the Application not performed by VOCALCOM, (ii) non-conforming use of the Services with the Documentation and/or with the instructions of VOCALCOM, and/or (iii) use of the Services within an environment which is non-compliant with the Environment. CLIENT acknowledges that the fees for the Services reflect the allocation of the risks under the Agreement and the economical balance required by the Parties, and that the Agreement would not have been concluded without the limitations of liability defined in this section. It is expressly agreed that, in any event, any claim for liability against VOCALCOM will be time-barred twelve (12) months after the date of the event at the origin of the damage arose under the relevant Purchase Order The Parties certify that they have taken out a professional liability insurance policy which covers any and all activities related to the Agreement and notably all the financial consequences of their liability, whether professional, contractual or in tort, with respect to personal injury and/or material or immaterial damages sustained by the other Party and any third party in connection with the performance of the Agreement. The Parties declare that such insurance policy was taken out in well-known and solvent insurance companies, and that the premium are duly paid and will remain paid on time. 14. Confidentiality, references 14.1 Each Party shall consider as strictly confidential, any data, information or knowledge, whatever their form or nature, and on whatever media, disclosed by the other Party in performing the Agreement, («Confidential Information»), and agrees that it shall not communicate nor disclose any Confidential Information to any third party or use Confidential Information except as permitted in this Agreement. The Parties may disclose Confidential Information only to those persons allowed to receive such information for the exclusive purpose of performing the Agreement and who agree to be bound by the provisions of the Agreement. Each Party undertakes to make such above-mentioned persons sign a non-disclosure agreement containing the same level of obligations as the provision of this section. 7/13

8 Confidential Information does not include information, documents and/or tools which (i) was part of the public domain at the time of their disclosure or become part of the public domain without any breach to the provisions of this section; (ii) result from independent development by one of the Parties without any breach to this obligation of confidentiality by the concerned Party, or has been obtained through a third party, not bound by an obligation of confidentiality; (iii) has been received by the receiving Party without any notice of its confidential nature; (iv) is required to be disclosed by a judicial or administrative Court order which binds the Parties. The undertaking provided in this section shall come into force as from the period of negotiations between the Parties and shall survive during five (5) years after the termination or expiration of the Agreement for any reason whatsoever, it being agreed that in any event, such undertaking - when it relates to any Confidential Information relating to the Application - shall remain valid during the term of the related intellectual property rights. CLIENT acknowledges that the framework and the organization of the Services (especially its components, software, applications, technical information, functional and technical specifications, functions, methods, know-how and similar information) shall be construed as Confidential Information owned by VOCALCOM and/or its licensors and therefore, that it shall not disclose this Confidential Information or use it except as permitted under the Agreement CLIENT expressly allows VOCALCOM to use its name and logo as a business reference, notably to post CLIENT s logo on its website or otherwise, provided that VOCALCOM complies with CLIENT s guidelines with respect to such use, if such guidelines are provided. In addition, the Parties may agree to issue a mutually agreed press release, given that such press release will then serve as a reference account for VOCALCOM. 15. Data 15.1 Each Party, for its own part, undertakes to comply with all applicable laws and regulations, in particular those relating to privacy and data protection. In addition, the transfer of Personal Data to VOCALCOM via the Services shall be governed by the Agreement and all applicable laws including but not limited to the Data Protection Act To the extent that VOCALCOM processes any Personal Data, it shall process it in accordance with CLIENT S instructions as data controller (as defined in the Data Protection Act 1998), subject to the Laws and Regulations on Data Protection CLIENT, in its capacity of owner of rights, is fully liable regarding the content of the Client Data. CLIENT shall be solely responsible for (i) the accuracy, quality and legality of CLIENT Data and of the means by which CLIENT acquires and processes Personal Data, and (ii) shall comply with the Laws and Regulations on Data Protection, when providing VOCALCOM with processing instructions and/or collecting and processing any Personal Data used within the framework of the Services. Consequently, VOCALCOM may not be held liable for the content of Personal Data and/or control over Personal Data, which are under the entire responsibility of CLIENT CLIENT will indemnify VOCALCOM and its licensors - upon VOCALCOM s first demand - against all claims of any nature whatsoever, arising from or relating to CLIENT Data and all other information communicated by CLIENT within the scope of the Agreement, and CLIENT undertakes to bear all indemnity due as damages in respect of such claims. 16. Term, termination, effects at the end of the Agreement 16.1 The Agreement commences on the Effective Date and continues until the end of the Free Trial period or, except as may otherwise be set forth herein, until all Users subscriptions granted for the term defined in the Purchase Order and starting on the Services Opening date, as part of the paying subscription, have expired, regardless of the extent of the use of the Services by CLIENT Unless otherwise specified in the applicable Purchase Order, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless VOCALCOM has given to CLIENT written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed seven per cent (7%) of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Purchase Order as promotional or one-time. Unless otherwise specified in the applicable Purchase Order, each Purchase Order is independent from other Purchase Orders; the non-renewal of a User subscription under one Purchase Order does not affect the effectiveness or renewal as set forth above of other Purchase Orders In the event of material breach by either Party of its contractual obligations under the Agreement, which is not cured within 8/13

9 thirty (30) days following receipt of written notice thereof by the breaching Party, the other Party may, as of right, terminate the Agreement, effective upon delivery of written notice to the breaching Party, without prejudice to any damages that the terminating Party could be entitled to In the event of termination of the agreement between VOCALCOM and Salesforce.com, Inc. relating to the marketing of SFDC Service between VOCALCOM and Salesfoce.com, the provisions provided in section 6 of exhibit 1 shall remain applicable Upon expiration or termination of the Agreement for any reason whatsoever, the Connection Data shall be immediately removed and CLIENT shall cease immediately any use of the Services, by any means whatsoever. CLIENT undertakes to pay immediately any and all amounts due to VOCALCOM under the Agreement without compensation or deduction; given that the amounts paid to VOCALCOM under the Agreement are not refundable. In addition, subject to the other Party s written request, each Party undertakes to return to the other Party (i) any Confidential Information and any copy thereof, and (ii) in general, to return any material provided by the other Party under the Agreement Within the framework of the paying subscription and further to CLIENT s written request received by VOCALCOM within thirty (30) days following the end of the Agreement, VOCALCOM may return to CLIENT the Data (in VOCALCOM s standard format); such return will constitute an additional service Sections 4, 10, 12, 13.1, 13.2, 14, 15 and 21 shall remain applicable during the necessary term to give them full effect. 17. Assignment and subcontracting 17.1 CLIENT shall not assign, contribute, or transfer - whether in whole or in part, free of charge or against payment, for any reason and under any form whatsoever - any of its rights and obligations under the Agreement, without the prior written consent of VOCALCOM. Any attempt by Client to assign, contribute or transfer this Agreement or any of its rights and obligations hereunder in violation of this section shall be null and void. VOCALCOM may assign, contribute or transfer its rights and obligations under the Agreement to any third party. In case of assignment or transfer of the Agreement pursuant to the conditions defined in this section, the assignee or the successor will be automatically bound by the Agreement VOCALCOM may subcontract its contractual obligations in whole or in part, it being agreed that VOCALCOM shall remain solely responsible for the execution of the contractual obligations as stated in the Agreement. 18. Export of technologies The use of the Services shall in no event infringe the applicable laws and regulations relating to the export of French and/or English technologies. Consequently, and in particular, CLIENT shall not export or re-export the Application (including by remote electronic access), directly or indirectly through third parties, in any country in contravention of any export laws or regulations. 19. Force Majeure Neither Party shall be liable to the other Party for any failure to perform its obligations under the Agreement due to an event of force majeure. For the purpose of the Agreement, an event of force majeure means any unavoidable, unforeseeable and external event preventing either Party from complying with its obligations under the Agreement such as, by way of illustration and not limitation (i) fire, flood and all other acts of God, the failure of a national telecommunication operator (in the UK or abroad), labour conflicts generating a strike be it national or within a particular sector (ii) the failure of a provider, supplier or business partner provided it is evidenced that such failure was unavoidable and/or (iii) the modification of any regulations applicable to the Agreement with any such characteristics, and generally, any governmental decision, including any cancelling or suspension of authorizations of any kind. In this case, the Party which raises the force majeure shall notify the other Party of the arising of such an event by formal notice, within a delay which shall not exceed four (4) days and the necessary extension of the deadlines to perform its obligations. At first, the force majeure event will suspend - as of right - the performance of the Agreement, excluding CLIENT s payment obligation. As soon as the impediment consequences due to the force majeure event stop, the said obligations shall continue for the rest of the term of the Agreement. However, if the force majeure event lasts longer than forty-five (45) days, the Agreement may be terminated by either Party without further judicial formalities by either Party upon written formal notice to the other Party with immediate effect. 20. General provisions The Agreement constitutes the entire agreement between the Parties. It cancels and supersedes all prior or simultaneous agreements, arrangements and understandings, whether oral or written, relating to the subject matter of the Agreement. Any change to the Agreement is subject to an amendment signed by a duly authorized representative of each Party. 9/13

10 If any provision of the Agreement is held to be illegal, invalid or unenforceable in whole or in part, as a result of any statutory or regulatory provision or after the decision of a competent court which has become final, the Parties shall negotiate in good faith to replace such provision with a new provision that reflects as closely as possible what was agreed between the Parties provided that such replacement provision is legally enforceable. All the other provisions of the Agreement shall continue in full force and effect, unless the purpose of the Agreement is consequently affected. The waiver or the late claim or the failure by either Party to claim a breach by the other Party of any of its obligations under the Agreement shall not be construed as a waiver of such obligation for the future. The Parties are independent contractors. Nothing in this Agreement is intended to, or shall operate to, create a partnership or joint venture between the Parties, to authorise either Party to act as an agent for the other or to authorise either Party to make or enter into any commitments for or on behalf of the other Party. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement except as explicitly provided herein but this does not affect any right or remedy of a third party that exists or is available apart from the Act. Unless otherwise provided in the Agreement, the files, data, messages and digitized records stored in the Parties data processing systems shall be admitted as proof of the facts and communications between the Parties, provided that the transmitting Party may be identified and that such materials are established and stored under conditions which permit to warrant their integrity. Notwithstanding the above provisions, all notices pertaining to the Agreement shall be in writing and either personally delivered or sent via postage prepaid certified mail which can be tracked, addressed to the other Party. All notices shall be effective upon delivery to the notice address. The Agreement is in the English language only, which language shall be controlling in all respects. Should the Agreement be translated in any other language, its English version only shall be binding on the Parties and shall prevail. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English language. For the purpose of the Agreement, each Party s official address shall the one stated at the Agreement header. 21. Governing Law; jurisdiction The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales. The Parties agree that they will try to reach an out-of-court settlement for any dispute arising out of or in connection with the performance or the construction of the Agreement. In the case of litigation, the Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). 10/13

11 EXHIBIT 1 SFDC Service Agreement "AppExchange" means the online directory of on-demand applications that work with the Service, located at or at any successor websites. "Platform" means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller s provision of the Reseller Application to You. Reseller means Vocalcom SAS. Reseller Application means Hermes Cloud. SFDC Service means the online, Web-based application and platform service generally made available to the public via and/or other designated websites, including associated offline components but excluding AppExchange applications. SFDC means salesforce.com, Inc. and its affiliates. "Users" means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by Salesforce.com or Reseller at Your request). You and Your means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller. "Your Data" means all electronic data or information submitted by You as and to the extent it resides in the Service. 1. Use of Service. (a) (b) (c) Each User subscription to the Reseller Application shall entitle one User to use the Service via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Service). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services, to use another application other than the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any SFDC Service functionality within it that is in excess to the functionality described in the Reseller Application s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access and use such functionality, and You agree that Your use of such functionality, Your use of applications other than the Reseller Application, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement. Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller. You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or Salesforce.com promptly of any such unauthorized use You 11/13