Salesflare SaaS Agreement

Welcome to salesflare.com and thank you for your interest in our Platform and Services.

These Terms of Service contain the terms and conditions that govern all use of the Platform and Services (as defined below). They are offered to you subject to your acceptance without modification.

When accepted by you, these Terms form a legally binding contract between you and the Provider (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.

Please read these terms carefully. By registering for, accessing, browsing, and/or otherwise using the Services, you acknowledge that you have read, understood, and agree to be bound by these terms.

If you do not agree to be bound by these terms, then please do not access, browse or otherwise use the Platform or the Services. Customers and/or users who violate these Terms may have their access and use of the Services suspended or terminated, at the Provider's discretion.

Agreement

1. Definitions

1.1 Except to the extent expressly provided otherwise, in this Agreement:

"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;

"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;

"Business Day" means any weekday other than a bank or public holiday in Belgium;

"Business Hours" means the hours of 09:00 to 18:00 CET on a Business Day;

"Charges" means the following amounts:

(a) the amounts specified on salesflare.com's pricing page and as described on salesflare.com's support page about billing ;

(b) such amounts as may be agreed in writing by the parties from time to time.

"Customer" means the person or entity who has concluded the Agreement with the Provider;

"Customer Confidential Information" means:

(a) any information disclosed by or on behalf of the Customer to the Provider during the Term of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

(i) was marked as "confidential"; or

(ii) should have been reasonably understood by the Provider to be confidential;

(b) and the Customer Data;

"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;

"Effective Date" means the date of execution of this Agreement;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, failures of the Provider's hosting provider, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means the services called Salesflare, as detailed on salesflare.com, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;

"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

(a) any act or omission of the Customer;

(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible on salesflare.com;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;

"Mobile App" means the mobile application known as Salesflare that is made available by the Provider through the respective app stores or via a dedicated download URL;

"Permitted Purpose" means the follow-up of, management of and personal (not mass) communication with customers and prospects with the goal of selling a product and/or service;

"Personal Data" has the meaning given to it in Art. 13/14 of the Regulation (EU) 2016/679 (General Data Protection Regulation);

"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;

"Provider" means Salesflare BVBA, a company incorporated in Belgium (registration number BE 0564.785.369) having its registered office at Rijnkaai 37 box 4, 2000 Antwerp, Belgium;

"Schedule" means any schedule attached to the main body of this Agreement;

"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;

"Supported Web Browser" means the current release from time to time of Google Chrome, or any other web browser that the Provider agrees in writing shall be supported;

"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;

"Update" means a hotfix, patch or minor version update to any Platform software; and

"Upgrade" means a major version upgrade of any Platform software.

2. Term

2.1 This Agreement shall come into force upon the Effective Date.

2.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 18.

3. Hosted Services

3.1 The Customer creates an Account with login details for that Account.

3.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.

3.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:

(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;

3.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:

(a) the Customer must not sub-license its right to access and use the Hosted Services;

(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;

(c) the Customer must not republish or redistribute any data, content or material from the Hosted Services except for the Customer Data; and

(d) the Customer must not make any alteration to the Platform, except as permitted by the Documentation.

3.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.

3.6 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer, but does not guarantee 100% availability.

3.7 For the avoidance of doubt, downtime caused by any of the following shall not be considered a breach of this Agreement:

(a) a Force Majeure Event;

(b) a fault or failure of the internet or any public telecommunications network;

(d) any breach by the Customer of this Agreement; or

(e) scheduled maintenance carried out in accordance with this Agreement.

3.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

3.9 The Customer must not use the Hosted Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

3.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue.

4. Maintenance Services

4.1 The Provider shall provide the Maintenance Services to the Customer during the Term.

4.2 The Provider shall where practicable give to the Customer prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this main body of this Agreement.

4.3 The Provider shall give to the Customer written notice of the application of an Upgrade to the Platform.

4.4 The Provider shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.

4.5 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue.

5. Support Services

5.1 The Provider shall provide the Support Services to the Customer during the Term.

5.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.

5.3 The Provider shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Provider's industry.

5.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

5.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.

5.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue.

6. Customer Data

6.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement (and for no other purposes), together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under the Agreement (and for no other purposes).

6.2 The Customer warrants to the Provider that the Customer Data will not:

(a) breach the provisions of any law, statute or regulation;

(b) infringe the Intellectual Property Rights or other legal rights of any person; or

in each case in any jurisdiction and under any applicable law.

6.3 The Provider shall create a daily back-up copy of the Customer Data, and shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken.

7. No assignment of Intellectual Property Rights

7.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

8. Charges

8.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.

8.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.

8.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise or unless explicitly specified, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.

8.4 The Provider may elect to vary any element of the Charges by giving to the Customer written notice of the variation expiring on any anniversary of the date of execution of this Agreement. Within the 30 days following the written notice, the Customer is free to terminate the agreement in case he does not agree with the change in Charges.

9. Payments

9.1 The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.

9.2 The Customer must immediately pay the Charges to the Provider following the issue of an invoice in accordance with this Clause 9.

9.3 The Customer must pay the Charges by debit card, credit card, direct debit, or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).

9.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of 12% per annum (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).

9.5 If the Charges are paid by debit card, credit card or direct debit, the Customer gives permission to the Provider to initiate a series of payments on their behalf on the agreed upon schedule.

10. Provider's confidentiality obligations

10.1 The Provider must:

(a) keep the Customer Confidential Information strictly confidential;

(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent;

(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;

(d) and act in good faith at all times in relation to the Customer Confidential Information.

10.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose.

10.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:

(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b) is or becomes publicly known through no act or default of the Provider; or

(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

10.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.

10.5 The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.

11. Data protection

11.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.

11.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:

(a) it will act only on instructions from the Customer in relation to the processing of that Personal Data;

(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data.

11.3 Further and more specific agreements between the Customer and the Provider around the processing of Personal Data are arranged in a separate Data Processing Agreement (DPA), which acts as an addendum to these terms. The Customer can request a DPA for mutual signature via this link.

12. Warranties

12.1 The Provider warrants to the Customer that:

(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

12.2 The Provider warrants to the Customer that:

(a) the Platform and Hosted Services will conform in all material respects with the specification on salesflare.com;

(b) the Platform will incorporate security features reflecting the requirements of good industry practice.

12.3 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under the Agreement.

12.4 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into the Agreement or any related contract.

13. Acknowledgements and warranty limitations

13.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

13.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.

13.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible on salesflare.com; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

13.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

14. Limitations and exclusions of liability

14.1 Nothing in this Agreement will:

(a) limit or exclude any liability for death or personal injury resulting from negligence;

(b) limit or exclude any liability for fraud or fraudulent misrepresentation;

(d) exclude any liabilities that may not be excluded under applicable law.

14.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:

(a) are subject to Clause 16.1; and

(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.

14.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

14.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

14.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.

14.6 Neither party shall be liable to the other party in respect of any loss of use or production.

14.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

14.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 16.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 7.3 and Clause 7.4.

14.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

14.10 The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under the Agreement in the 12 month period preceding the commencement of the event or events.

14.11 The aggregate liability of the Provider to the Customer under this Agreement shall not exceed the greater of the total amount paid and payable by the Customer to the Provider under the Agreement.

15. Force Majeure Event

15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a) promptly notify the other; and

(b) inform the other of the period for which it is estimated that such failure or delay will continue.

15.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

16. Termination

16.1 The Customer may terminate this Agreement by giving to the Provider written notice of termination.

16.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.

16.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;

(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement);

17. Effects of termination

17.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.11, 8, 11.2, 11.4, 12, 16, 19, 22 and 23.

17.2 The termination of this Agreement shall not affect the accrued rights of either party.

17.3 Within 30 days following the termination of this Agreement for any reason:

(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of the Agreement; and

(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of the Agreement, starting from the next monthly or annual renewal,

without prejudice to the parties' other legal rights.

18. Notices

18.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out above for the Provider, and using the relevant contact details the Customer has provided):

(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery;

(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 3 Business Days following posting; or

providing that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.

18.2 These contact details may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 18.

19. Subcontracting

19.1 The Provider may subcontract any of its obligations under this Agreement.

19.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.

20. General

20.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

20.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

20.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

20.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.

20.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

20.6 This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

20.7 This Agreement shall be governed by and construed in accordance with Belgian law.

20.8 The courts of Antwerp, Belgium, shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

21. Interpretation

21.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

21.2 The Clause headings do not affect the interpretation of this Agreement.

21.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.