CRM Live Subscription Agreement - ANZ Region - Maximizer CRM

This Maximizer CRM Live….

This Maximizer CRM Live  Subscription Agreement  consists of the terms and conditions set out below and the order form (the “ O rder Form ”) entered into between Maximizer Software  Solutions Pty. Ltd. (“ Maximizer ”) and you (collectively,  the “ Agreement ”).

BY ACCEPTING  THIS AGREEMENT,  EITHER  BY CLICKING  THE “I AGREE” BUTTON  DISPLAYED AS PART OF THE ORDERING  PROCESS OR BY EXECUTING  AN ORDER FORM THAT REFERENCES THIS AGREEMENT,  YOU AGREE TO THE FOLLOWING  TERMS  AND CONDITIONS  GOVERNING YOUR USE OF THE MAXIMIZER  SERVICES, AS DESCRIBED  BELOW.  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 CONDITIONS.   IF YOU DO NOT HAVE SUCH AUTHORITY,   OR IF YOU DO NOT AGREE WITH THESE TERMS  AND CONDITIONS,   YOU SHOULD  NOT CLICK  THE “I AGREE” BUTTON  AND MAY NOT ACCESS OR USE THE MAXIMIZER  SERVICES.

1 .          AGREEMENT   DEFINITIONS

Y o u ” and “ Your ” refers  to the individual  or entity, and any Affiliates (as defined  below) of such an entity, that has ordered  Maximizer CRM Live  software as a service from Maximizer by executing an Order Form. Software as a service consists of system administration, system management,  and system monitoring activities that Maximizer performs  for the Maximizer CRM Live program,  and includes the right to use the Maximizer CRM Live program  and support services  for such program,  as defined in the Order Fo rm (collectively, the “ Maximizer Services ”).  The term “ User Guide ” refers  to the user guide provided  by Maximizer, as amended from time to time.  The term “ Users ”  means Your employees and any

consultants, contractors and agents who require  the use of the Maximizer Services  to perform  services  for You, and who are authorized by You to use the Maximizer Services,  for whom subscriptions to the Maximizer Services  have  been purchased under an Order Form accepted by Maximizer, and who have been supplied with user identifications and passwords  by You (or by Maximizer at Your request).  The

term “ Your Data ” refers  to all proprietary  electronic data entered by You that resides in Your service environment.   The term “ Malicious Code ” refers  to any harmful or malicious code, content, files, scripts, agents or programs  including, but not limited to, viruses, malware,  worms, time bombs and Trojan horses. The term “ Third-Party Applications ” refers  to online, Web-based  applications and offline software products that are provided  by third parties, interoperate  with the Maximizer Services, and are identified as third-party  applications in the User Guide.  The term “ Affiliate ” refers  to any entity which directly or indirectly controls, is controlled by, or is under common cont rol with the subject entity.  “ Control ,” for the purposes  of the definition of Affiliate, means direct or indirect ownership  or control of more than 50% of

the voting  interests of the subject entity.  The term “ Purchased Services ” refers  to Maximizer Services that You purchase under an Order Form but does not include any of the Maximizer Services  provided  by Maximizer to You under a free trial.

2 .          RIGHTS GRANTED

Upon Maximizer’s acceptance of Your Order Form, and for the duration of the subscription period set out in the Order Form or the term of this Agreement,  whichever  ends first, You have  the nonexclusive,  non – assignable, non sub-licensable  worldwide  limited right to use the Maximizer Services  solely for Your internal business operations  and subject to the terms of this Agreement.   You may allow the Users to use the Maximizer Services  for this purpose and You are responsible  for the User’s compliance with this Agreement.

You acknowledge  that Maximizer has no delivery  obligation and will not ship copies of an y components of the Maximizer Services  to You.  You agree that You do not acquire under this Agreement  any license to use the Maximizer Services  in excess of the scope or duration set out in the Order Form and this Agreement.   Upon the end of this Agreement,  Your right to access or use the Maximizer Services  will terminate.

3 .          PROPRIETARY  RIGHTS

3 . 1        Reservation of Rights

Subject to the limited rights expressly granted under this Agreement,  Maximizer reserves  all rights, title and interest in and to the Maximizer S ervices  and all software or other intellectual property  rights of Maximizer and its licensors therein.  No rights or licenses are granted to You under this Agreement except the right to use the Maximizer Services  as expressly set forth in, and subject to, this Agreement.

3 . 2        Ownership of Your Data

As between Maximizer and You, You retain all rights, title and interest in and to all of Your Data.

3 . 3        Your Suggestions

Maximizer will have a royalty -free,  worldwide,  transferable,  sub-licensable,  irrevocable,  perpetual  license to use or incorporate  into the Maximizer Services  any suggestions, enhancement  requests, recommendations  or other feedback  provided  by You, including any Users, related to the operation  of, or modification  or improvement  to, the Maximizer Services.

4 .          FREE TRIAL

Terms and conditions for the use of the Maximizer Services on a trial basis may appear on the trial registration web page.  Any such terms and conditions are incorporated  into this Agreement  by reference and are legally binding on You.

Any data You enter into the Maximizer Services, and any customizations made to the Maximizer Services by or for You, during Your free trial will be permanently  lost unless You purchase a subscription to the Maximizer Services,  or export such data, before the end of the trial period.  You acknowledge  that You are solely responsible  for exporting Your Data from the Maximizer Services  prior to the end of a free trial period.  Maximizer will not be responsible  for any of Your Data that is lost as a result of Your failu re to export it prior to the end of the free trial period.

NO T W I T H S T AND I N G  SECTION  10, DURING THE FREE TRIAL THE MAXIMIZER  SERVICES  ARE

P R O V I D E D “AS-IS” WITHOUT ANY WARRANTY.

Please review  the User Guide during the free trial period so that You become familiar with the features and functions of the Maximizer Services before  You make Your purchase.

5 .          USE OF THE MAXIMIZER  SERVICES

5 . 1        User Subscriptions

Unless otherwise specified in the applicable Order Form:

(a)         the Maximizer Services  are purchased as User subscriptions and may be accessed by no more than the specified number of Users on the applicable Order Form and for which payment has been made to Maximizer;

(b)         the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on any Order Form;

(c)         additional  User subscriptions may be added during the subscription term at Maximizer’s then current list price at the time additional subscriptions are added, pro-rated  for the remainder  of the subscription term in effect at the time the additional  User subscriptions are added; and

(d)         User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Maximizer Services.

5 . 2        Maximizer’s Responsibilities

Maximizer will:

(a)         provide  to You support for the Purchased Services  as described in the User Manual;

(b)         provide  the Purchased Services  only in accordance  with applicable laws and government regulations;  and

(c)         use commercially reasonable efforts  to make the Purchased Services  available  to You at least 99.5% of the time in any calendar month.  The calculation of such percentage  does not include:

(1)         planned downtime (of which Maximizer will give at least 24 hours ’ notice and which Maximizer will schedule to the extent practicable during the hours from 7 p.m. Pacific time to 3 a.m. Pacific time); or

(2)         any unavailability  caused by circumstances beyond Maximizer’s reasonable control, including without limitation, acts of God, acts of government,  flood, fire, earthquakes,  civil unrest, acts of terror,  strikes or other labor problems (other than those involving  Maximizer’s employees), or Internet  service provider  failures or delays.

5 . 3        Your Responsibilities

You will:

(a)         use the Maximizer Services  only for Your internal business purposes  and in accordance with the User Guide;

(b)         be responsible for Users’ compliance with this Agreement;

(c)         be solely responsible  for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data; and

(d)         use Your best efforts  to prevent  unauthorized  access to or use of the Maximizer Services by persons who are not Users, and notify Maximizer promptly of any such unauthorized access or use.

You will not:

(e)         make the Maximizer Servic es available  to anyone other than Users;

(f)           sub-license, sell, resell, rent or lease the Maximizer Services;

(g)         use the Maximizer Services  to upload, store, transmit, email, post or publish in any manner whatsoever  any of Your Data or other material for any purpose that may:

(1)         menace or harass any person or cause damage or injury to any person or property;

(2)         involve  the publication of any material that is false, defamatory,  harassing, pornographic  or otherwise obscene;

(3)         violate privacy  rights or promote bigotry, racism, hatred or harm;

(4)         constitute unsolicited commercial email, junk mail, spam or chain letters or otherwise offend  the provisions  of the Fighting Internet and Wireless Spam Act (Canada),  the Controlling  the Assault of Non-Solicited  Pornography  And M a r k e t i n g Act of 2003 (United States), or any similar legislation in other provinces,  states, countries or territories;

(5)         infringe the intellectual property  or other proprietary  rights of any person including, but not limited to, any copyright, trademarks, patents or trade secrets of any other person;

(6)         reasonably  injure Maximizer’s reput ation or goodwill;

(7)          otherwise violate any applicable laws or regulations;

(h)         use the Maximizer Services  to store or transmit Malicious Code;

(i)          interfere  with or disrupt the integrity or performance  of the Maximizer Services  or third – party data contained therein;

(j)          attempt to gain unauthorized  access to the Maximizer Services or Maximizer’s or its other customers’ or licensors’ related systems or networks;

(k)         make the programs  or materials resulting from the Maximizer Services  available  in any manner to any third party for use in the third party’s business operations;

(l)          create derivative  works based on the Maximizer Services;

(m)         copy, frame or mirror any part or content of the Maximizer Services;

(n)        remove  or modify any program  markings or any notice of Maximizer’s or its licensors’

proprietary  rights;

(o)         reverse  engineer  the Maximizer Services;

(p)         access the Maximizer Services  in order to build a competitive  product or service, or copy any features,  functions or graphics  of the Maximizer Services;  or

(q)         send an email using the Maximizer Services  to an email address: (1)   for which You have received  an opt-out request; or (2) for which You have received  notification that emails sent to such address are “undeliverable”  after ten days of receiving  such notice.

5 . 4        Usage Limitations

The Maximizer Services  may be subject to other limitations including, but not limited to:

(a)   the storage space provided  for Your use of the Purchased Services; and

(b)         the aggregate  number of emails that Users will be able to send using the Purchased Services.

Maximizer reserves  the right to amend the usage limitations set out in this Section from time to time without providing  notice to You. Details of current  usage limitations are outlined at: Pricing

6 .          THIRD-PARTY  APPLICATIONS

Maximizer may offer  for sale Third-Party  Applications under Order Forms.  Any acquisition by You of third party products or services including, but not limited to, Third Party Applications and implementation, customization and other consulting services, and any exchange of data between You and a ny third party provider,  is solely between You and the applicable third party provider.   Your right to use Third Party Applications is governed  by the terms of the Third  Party Application license agreement  and, unless otherwise stated in the Order Form, not under this Agreement.   Maximizer does not warrant  or support third-party  products or services.   You acknowledge  that Maximizer may allow providers  of those Third- Party Applications to access Your Data as required  for the interoperation  of such Third -Party  Applications with the Maximizer Services.  Maximizer will not be responsible  for any disclosure, modification  or deletion of Your Data resulting from any such access by Third-Party  Application providers.

7 .          FEES AND PAYMENT  FOR PURCHASED  SERVICES

7 . 1        User Fees

You will pay fees specified in the Order Form, as adjusted on each renewal term as contemplated in Section 13.2, in accordance with the terms and conditions set out therein and in this Agreement.   Except as otherwise specified in this Agreement or in an Order Form:

(a)         fees are quoted and payable in the currency specified in the Order Form;

(b)         fees are based on the Maximizer Services  purchased by You, including those added under Section 5.1, even  if Your actual usage is less;

(c)         payment obligations are non-cancelable  and fees paid to Maximizer are non-refundable except as expressly provided  in Sections 13.5;

(d)         except as otherwise specified in the applicable Order Form, user subscription fees are based on annual periods  that begin on the subscription start date and each annual anniversary  thereafter;  and

(e)         fees for User subscriptions added in the middle of a month will be charged for that full month and all remaining months in t hat annual subscription term on a pro-rata  basis.

7 . 2        Invoicing and Payment

You will provide  Maximizer with valid and current credit card information  or with valid and current automatic  bank debit information.   You authorize Maximizer and its processing instit ution to charge such credit or automatically withdraw  from such designated bank account, as applicable, for all Maximizer Services  listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2.  Such charges  will be made in advance,  either annually  or in accordance  with any different  billing frequency  stated in the applicable Order Form.  If Maximizer ag rees in an Order Form that payment will be by a method other than a credit card or automatic bank debit, Maximizer will invoice You in advance  and otherwise in accordance with the relevant  Order Form.  Unless otherwise stated in the Order Form, invoiced charges are due 15 days from the invoice  date (the “ Due Date ”).  You are responsible  for maintaining  complete and accurate billing and contact information  in the Maximizer Services.

7 . 3        Overdue Charges

If any charges are not received  by Maximizer from You by the Due Date, then at Maximizer’s discretion:

(a)         such charges may accrue late interest at the rate of 1.5% of the outstanding  balance per month, or the maximum rate permitted by law, whichever  is lower, from the Due Date until the date paid; and/or

(b)         Maximizer may condition future subscription renewals  and Order Forms on payment terms other than those specified in Section 7.2.

7 . 4        Suspension  of Service and Acceleration

If any amount  owing by You under this Agreement  is 30 or more days overdue  (or 10 or more days overdue  in the case of amounts You have  authorized Maximizer to charge to Your credit card), Maximizer may, without limiting Maximizer’s other rights and remedies,  accelerate Your unpaid fee obligations under this Agreement  so that all such obligations  become immediately due and payable, and suspend provision of any or all of the Maximizer Services  to You until such amounts are paid in full.

7 . 5        Payment Disputes

Maximizer will not exercise its rights under Section 7.4 if the applicable charges  are under reasonable and good-faith  dispute by You and You are cooperating  diligently to resolve  the dispute.

7 . 6        Taxes

Unless otherwise stated, Maximizer’s fees do not include any taxes, levies,  duties or similar governmental assessments of any nature including but not limited to, value-added,   sales, use or withholding  taxes, assessable by any local, state, provincial,  federal  or foreign  jurisdiction (collectively, ” Taxes “).  You are responsible  for paying all Taxes associated with Your purchases and use of the Maximizer Services contemplated  in this Agreement.   If Maximizer has the legal obligation to pay or collect Taxes for which You are responsible  under this paragraph,  the appropriate  amount  will be invoiced  to and paid by You, unless You provide  Maximizer with a valid tax exemption certificate authorized by the appropriate  taxing authority.  For clarity, Maximizer is solely responsible  for taxes assessable against it based on Maximizer’s income.

8 .          CONFIDENTIALITY

By virtue  of this Agreement,  the parties may have  access to information  that is confidential  to one another (the “ Confidential Information ”).  Confidential  Information  is limited to the terms and pricing under this Agreement,  Your Data, and all information  clearly identified as confidential  at the time of disclosure.  A party’s Confidential  Information  will not include information  that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently  developed  by the other party.

Each party agrees  to hold the other party’s Confidential  Information  in confidence during the term of this Agreement  and for a period of three years thereafter.   Eac h party agrees  to disclose only information  that is required  for the performance  of obligations under this Agreement.   Nothing in this Section will prevent either party from disclosing the Confidential  Information  to a governmental  entity as required by la w.

9 .          PROTECTION  OF YOUR  DATA

9 . 1        Safeguards

Maximizer will maintain reasonable  administrative,  physical, and technical safeguards  for protection of the security, confidentiality  and integrity of Your Data.  Maximizer will not:

(a)         modify Your Data;

(b)         disclose Your Data except as required  by law; or

(c)         access Your Data except:

(1)         to provide  the Maximizer Services;

(2)        to collect performance  metrics and other statistical information about the Maximizer Services;

(3)         to prevent  or address service or technical problems; or

(4)         at Your request in connection with customer support matters.

9 . 2        Security Breaches

Despite best efforts, no method of transmission over  the Internet,  or method of electronic storage, is perfectly secure. Therefore,  we cannot guarantee  absolute security. If Maximizer Services  learns of a security breach or potential security breach, we will make our best effort to notify the affected users electronically (via all email addresses available  on our customer database) so that they can take appropriate  protective  steps. Maximizer Services may also post a notice on the Maximizer CRM Live website if warranted.

10 .        WARRANTIES  AND DISCLAIMERS

10 . 1       Limited Warranty

Maximizer warrants  that the Purchased Services  will perform  materially in accordance with the User Guide.   If the Maximizer Services provided  to You for any given  month during the term of this Agreement are not performed  as warranted,  You must provide  written notice to Maximizer no later than five  business days after the last day of that particular month.  This limited warranty  is subje ct to the following  limitations:

(a)         this limited warranty  applies only during the term of this Agreement,  including any renewals  (the “ Warranty Period ”);

(b)         any implied warranties,  guarantees  or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;

(c)         this limited warranty  does not cover  problems caused by accident, abuse or use of the Maximizer Services  in a manner inconsistent with this Agreement or the User Guide, or resulting from events  beyond Maximizer’s reasonable  control;

(d)         this limited warranty  does not apply to problems caused by the failure to meet minimum system requirements;  and

(e)         this limited warranty  does not apply to downtime or other interruptions  in access to the Maximizer Services.

10 . 2       Disclaimer of Other Warranties

OTHER THAN THIS  LIMITED  WARRANTY,  MAXIMIZER  PROVIDES  NO OTHER EXPRESS  OR IMPLIED WARRANTIES.   TO THE EXTENT  NOT PROHIBITED  BY LAW, MAXIMIZER  DISCLAIMS  ANY IMPLIED REPRESENTATIONS,   WARRANTIES  OR CONDITIONS,  INCLUDING  WARRANTIES  OF MERCHANTABILITY,   FITNESS  FOR A PARTICULAR  PURPOSE, SATISFACTORY  QUALITY,  TITLE OR NON-INFRINGEMENT.

11 .        INDEMNIFICATION

11 . 1       Your Indemnity

You will defend Maximizer, its officers,  directors, employees, suppliers, agents, and assigns against any claims, liabilities, losses, costs or damages, including lawyer’s fees (a “ Claim ”), related to or arising out of:

(a)         Your breach of any term, condition or warranty  in this Agreement; (b) Your use or installation of any third party’s software;

(c)         Your unauthorized  use of any third party’s proprietary  or confidential  intellectual property or information including, but not limited to, patents, copyrights, licensed material or trade secrets; or

(d)         Your use of the Maximizer Services  in a manner that contravenes  any applicable law or regulation including, but not limited to, Your unauthorized  or improper use of any individual’s  personal  information  in contravention  of any applicable privacy  laws, provided  that Maximizer gives You written notice of the Claim, gives You sole control of the defense and settlement of the Claim (provided  that You may not settle any Claim unless the settlement unconditionally releases Maximizer of all liability) and provides  to You all reasonable  assistance, at Your expense.

11 . 2       Maximizer Indemnity

Provided  that you are in compliance with the terms of this Agreement,  Maximizer indemnifies  You against any Claim incurred by You based on infringement  of a third party’s patent or copyright in Canada or the United States of America that is due to Your use of the Purchased Services  during the term of this Agreement,  provided:  (i) that such use is in accordance  with the terms and conditions of this Agreement ; (ii) You give prompt notice of any Claim which may be incurred by You; (iii) Maximizer has exclusive conduct of the litigation; (iv) You immediately cease use of the Purchased Services  alleged to be the subject of the Claim; and (v) Maximizer’s obligations hereunder  extend only to the extent that the claim is as a result of Your use of the Purchased Services.

Maximizer will have the right, without obligation:

(a)         if available  on terms reasonable  to Maximizer at is sole discretion, to settle the Claim;

(b)      to procure for You the right to the continued use of the Purchased  Services  in accordance  with the terms of this Agreement;

(c)         to provide  You with rights to non-infringing  intellectual property to replace the Purchased Services,  having  equivalent  functionality ; or

(d)         to refund the fees paid by You to Maximizer for the Purchased Services  following which Your right to use the Purchased Services  will cease, following  which Maximizer will have  no further  obligations to You in respect of the Claim . Notwithstanding  anything herein to the contrary, the foregoing  section 11.2 sets out Your exclusive remedy for Claims incurred by You based on infringement  of a third party’s patent or copyright in Canada or the United States of America that is due to Your use of the Purchased Services.

Maximizer will have no liability and indemnity obligations  for any Claim which is based on:

(e)         the use or combination  of the Purchased Services  with software, hardware  or any other materials not provided  or approved  by Maximizer, provided  the Claim would not have arisen but for such use or combination;

(f)          use of the Purchased Services  other than in a manner contemplated by this Agreement or the User Guide provided  the Claim would not have arisen but for such use;

(g)         any modification  by You of the Purchased Services, provided  the Claim would not have arisen but for such modification;  or

(h)         Maximizer’s compliance with Your requests to modify the Purchased Services  provided such claim would not have arisen but for such compliance.

12 .        LIMITATION OF LIABILITY AND CHANGES

12 . 1       Limitation of Liability

NEITHER  PARTY WILL BE LIABLE FOR ANY INDIRECT,  INCIDENTAL,   SPECIAL, PUNITIVE,  OR CONSEQUENTIAL   DAMAGES, OR ANY LOSS OF REVENUE  OR PROFITS  (EXCLUDING  FEES UNDER THIS AGREEMENT),  DATA, OR DATA USE.  EXCEPT  FOR MAXIMIZER’S   OBLIGATION  OF INDEMNIFICA TION  UNDER SUBSECTION  11.2 OF THIS AGREEMENT,  MAXIMIZER’S  MAXIMUM LIABILITY  FOR ANY DAMAGES ARISING OUT OF OR RELATED  TO THIS AGREEMENT,  WHETHER IN CONTRACT  OR IN TORT,  OR OTHERWISE,  WILL IN NO EVENT EXCEED,  IN THE AGGREGATE, THE TOTAL  AMOUNTS  ACTUALLY  PAID TO MAXIMIZER  UNDER THE ORDER FORM FOR THE MAXIMIZER  SERVICES THAT  ARE SUBJECT TO THE CLAIM IN THE THREE  MONTH PERIOD IMMEDIATELY  PRECEDING  THE EVENT GIVING RISE TO SUCH CLAIM.  ANY DAMAGE IN YOUR FAVOUR AGAINST  MAXIMIZER  WILL BE REDUCED BY ANY REFUND OF CREDIT RECEIVED BY YOU UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT WILL APPLY TOWARDS

THE LIMITATION  OF LIABILITY.   THE FOREGOING  DISCLAIMER  WILL NOT APPLY TO THE EXTENT PROHIBITED  BY APPLICABLE LAW.

12 . 2       Changes

Notwithstanding  anything else to the contrary in this Agreement,  Maximizer reserves  the right at any time not to release or to discontinue release of any P urchased Services  (and other Maximizer Services),  to change its then current list price for the Purchased Services  and other Maximizer Services  and to alter features,  specifications, capabilities, functions, licensing terms, release dates, general availabi lity  or other characteristics of the Purchased Services and other Maximizer Services.

13 .        TERM AND TERMINATION

13 . 1       Term of Agreement

Unless terminated earlier in accordance  with Section 13.3, this Agreement  commences on the date You accept it or the date You accept an Order Form to which this Agreement  applies, whichever  is earlier,  and continues until all User subscriptions granted to You by Maximizer have  expired or been terminated.   If You elect to use the Maximizer Services  for a free trial period and do not purchase a subscription before the end of that period, this Agreement  will terminate at the end of that free trial period.

13 . 2       Term of Purchased User Subscriptions

User subscriptions purchased by You commence on the start date specified in the applicable Order Form accepted by Maximizer and continue for the subscription term specified in the Order Form.  Except as otherwise specified in the applicable Order Form, all User subscriptions will automatically renew for additional  periods equal to the expiring subscription term or one year, whichever  is shorter, unless either party gives the other written notice of non-renewal  at least 60 days before the end of the relevant subscription term.  The per-unit  pricing during any such renewal  term will be at Maximizer’s then current list price for the Purchased Services which will be made available  to You by Maximizer on request.

13 . 3       Termination by Maximizer

Maximizer may terminate this Agreement,  effective  immediately and without liability of Maximizer:

(a)         without notice if You breach any of the terms or conditions set out in Section 5.3;

(b)         in addition to Maximizer’s rights of termination under Subsection (a) above,  upon 30 days written notice to You of a breach by You or any Users of the terms of this Agreement  if such breach remains uncured at the expiration of such notice period;

(c)         without notice if You become the subject of a petition in bankruptcy or any other proceeding  relating to insolvency,  receivership,  liquidation or assignment for the benefit of creditors; or

(d)         upon 90 days’ written notice to You for any other reason whatsoever.

13 . 4       Termination by You

(a)         You may terminate this Agreement:

(1)         upon 30 days’ written notice to Maximizer of a breach by Maximizer of the terms of this Agreement  if such breach remains uncured at the expiration of s uch notice period; or

(2)         upon 30 days’ written notice to Maximizer if Maximizer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership,  liquidation or assignment for the benefit  of creditors; or

(b)         In addition, no earlier than 90 days after the commencement  of the initial term of this Agreement  (excluding any free trial period) or any renewal term, You may give  written notice to Maximizer to terminate this Agreement,  which notice will be effective  upon a further 90 days from the date of the notice (i.e. the effective  date of termination will be no earlier than 180 days after commencement  of the term) for any other reason whatsoever.

13 . 5       Refund or Payment upon Termination

Upon termination in accordance  with Section 13.3(d) or 13.4, Maximizer will refund  You any prepaid  fees covering  the remainder  of the term of all subscriptions after the effective  date of termination.   Upon termination under Section 13.3(a), 13.3(b) or 13.3(c), You acknowledge  and agree that Maximizer will not provide  any refund to You and You will pay any unpaid fees covering  the remainder of the term of the Order Form after the effective  date of termination.   In no event will any termination relieve  You of the obligation to pay any fees payable to Maximizer for the period prior to the effective  date of termination.

13 . 6       Return of Your Data

Upon request by You made within 30 days after the effective  date of termination of a Purchased Services subscription, Maximizer will make Your Data available  to You for download.   After such 30 -day period, Maximizer will have no obligation to maintain or provide  any of Your Data and will thereafter,  unless legally  prohibited,  delete all of Your Data in Maximizer’s systems or otherwise in Maximizer’s possession or control.

13 . 7       Surviving Provisions

Sections 3, 5.3, 7, 8, 10.2, 11.1, 12, 13.5, 13.6, 14 will survive  any termination or expiration of this Agreement.

14 .        GENERAL

14 . 1       Amendment

This Agreement  may be amended  at any time by mutual agreement  of the parties in writing.  Except as otherwise provided  in Section 5.4, Maximizer further  reserves  the right to make changes to other parts of this Agreement  to reflect changes in or required  by law or to reflect changes in business practices, provided  that any amendments  will only have  prospective  effect, by providing  You with notice.  Notice of such amendments will be provided  to You in accordance with Section 14.8 and by posting notice of the amendments  on the Maximizer CRM Live website at Agreement . If You do not accept such amendments,  You may terminate this Agreement  at any time within the 60-day  period following  notice by Maximizer, by delivering  written notice to Maximizer of Your intention to terminate.  If You do not deliver  notice to Maximizer terminating this Agreement  within the 60 – day period,  You will be deemed to have accepted the amendment.

14 . 2       Audit

Maximizer may audit Your use of the Maximizer Services  and You will cooperate and provide  Maximizer with reasonable  assistance and access to information,  so long as Maximizer gives You three days advance  written notice.  You agree to pay within 30 days of written notice any fees applicable to Your use of the Maximizer Services in excess of Your rights under this Agreement.   You agree that Maximizer will not be responsible  for any of Your costs incurred in cooperating  with the audit.

14 . 3       Waiver of Jury Trial

Each party hereby  waives  any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

14 . 4       Press Releases

You acknowledge  that Maximizer may make reference  to You and Your relationship  to Maximizer in press releases, advertising  and promotional  materials and You consent to any such reference.

14 . 5       Relationship

The parties are independent  contractors and are not agents, joint venturers,  partners  or employees  of one another,  and Maximizer will not be obligated by any agreements  or representations  made by You to any person, nor will Maximizer be obligated for any damages to any person caused by Your actions, failure to act, negligence or willful conduct.

14 . 6       Assignment

This Agreement  may not be assigned or sublicensed by You without the prior written approval  of Maximizer.  Maximizer may subcontract or delegate the provision  of any or all of the Maximizer Services or otherwise assign its rights in this agreement  at any time without Your consent.

14 . 7       Entire Agreement; Enforceability;  Waiver

This Agreement  and the applicable Order Form constitute the entire agreement  between the parties relating to the subject matter of this Agreement  and supersede or replace all prior or contemporaneo us agreements  or representations.   The terms and conditions of this Agreement  may only be amended under an amendment  to this agreement  signed by all parties.  If any terms of this Agreement  are found to be invalid  or unenforceable,  the remaining  provisions  will remain effective.   No failure or delay by a party in exercising any right or power under this agreement  will operate as a waiver  of that right  or power,  and the single or partial exercise of a right or power under this Agreement  will not preclude any  other or future exercise of that or any other right or power.

14 . 8       Notice

Except as otherwise specified in this Agreement,  all notices, permissions and approvals  will be in writing and will be deemed to have  been given  upon: (i) personal  delivery,  (ii) the fifth business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (i) the first business day after sending by email to the email address  set out in the Order Form (provided  email will not be sufficient  for notices of termination or an indemnifiable  claim).  Notice to You will be addressed to the system administrator  designated by You under the Order Form, and in the case of billing notices, to the relevant billing contact designated by You.  The address and contact person for any notices by You to Maximizer will be to Maximizer Services  Inc., 208 West 1st Ave , Vancouver,  BC, Canada   V5Y 3T2, Facsimile: 604-681-6001,  Attention: CRM Administrator.

14 . 9       Governing Jurisdiction.

This Agreement  in all respects will be governed  and interpreted  in accordance with the laws of the Province  of British Columbia,  and the parties hereby irrevocably  attorn exclusively  to the Courts of the Province  of British Columbia.  This Agreement  will not be governed  by the conflict of law rules of any ot her jurisdiction or the United Nations Convention  on Contracts for the International  Sale of Goods, the application of which is expressly excluded.

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