MASTER SUBSCRIPTION AGREEMENT (FREE TRIAL)

THIS MASTER SUBSCRIPTION AGREEMENT (FREE TRIAL) GOVERNS CUSTOMER’S ACQUISITION AND USE OF SITERACKER SERVICES FOR THE FREE TRIAL PURPOSE. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE SERVICES FOR THE FREE TRIAL PURPOSE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Sitetracker’s direct competitors are prohibited from accessing the Services, except with Sitetracker’s prior written consent.
This Agreement is effective between Customer and Sitetracker as of the date of Customer’s accepting this Agreement in accordance with one of the options as set forth above (“Effective Date”).

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Master Subscription Agreement (Free Trial) and any exhibits, schedules and addenda hereto.

“Authorized User” means an individual who is authorized by Customer to use a Service, for whom Customer has ordered the Service, and to whom Customer (or Sitetracker at Customer’s request) has supplied a user identification and password. Authorized Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

“Beta Services” means Sitetracker services that are not generally available to customers.

“Customer” or “you” means the customer named above and its Affiliates.

“Customer Data” means (a) all information, data and materials owned or controlled by Customer that are furnished to Sitetracker in connection with the Services, uploaded to the Services, or otherwise made available to Sitetracker pursuant to this Agreement, and (b) any results, data, and reports generated via the Services incorporating or based on the above.

“Documentation” means Sitetracker’s then-current technical and functional documentation for the Services as made available by Sitetracker to Customer.

“Intellectual Property Rights” means all intellectual and industrial property rights in any jurisdiction worldwide, including copyrights, patents, trademarks, trade names, trade secrets, mask work rights, moral and contract rights, and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer and Sitetracker or any of its Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

“Purchased Services” means Services that Customer purchases under an Order Form, as distinguished from those provided pursuant to a free trial.

“Salesforce Platform” means the hosted platform-as-a-service made available by Salesforce.

“Services” means, the Sitetracker Software provided pursuant to this Agreement (including any and all services provided by Sitetracker under a free trial).

“Sitetracker Property” means the Services, Services Integrations, and all other software applications, software code, software tools, platforms, architecture, technology, work products, know-how, trade secrets, processes, methodologies, designs, templates, content, files and other intellectual property developed by Sitetracker, and any improvements, updates, changes, modifications, or enhancements thereto.

“Sitetracker Software” means: (i) the Sitetracker software application or applications ordered by Customer (ii) all new versions, updates, revisions, enhancements, improvements, derivatives and modifications of the foregoing.

“Services Integrations” means any applications, integrations, APIs, or other software or systems used or developed by Sitetracker to integrate the Services with Customer systems or Third Party Applications.

“Statement of Work” or “SOW” means the Statement of Work entered into between Sitetracker and Customer that outlines business parameters and other matters regarding the Services that Customer has engaged Sitetracker to provide.

“Third Party Applications” means any software not provided by Sitetracker that interoperates with the Services.

“Updates” are any modifications, improvements, bug fixes, or other new versions of the Services made available as part of the Subscription. Sitetracker will make all Updates available to Customer as and when they are available to other Service subscribers.

2. SUBSCRIPTION

2.1. License Grant. Sitetracker grants Customer a limited, non-transferable, non-exclusive right during the Term (as defined in “Term and Termination” section below) for Authorized Users to use and access the Sitetracker Software (such access, the “Subscription”). Portions of the Services are built on the Salesforce.com platform, and the Subscription includes a limited, non-transferable, non-exclusive right for Authorized Users to use and access the Salesforce Platform solely through, and to the extent required to use, the Services. Unless otherwise set forth herein, all of Customer’s restrictions and obligations respecting the Services apply equally to the Salesforce Platform. Unless otherwise specified herein or in an Order Form or SOW, you may not use Salesforce Platform subscriptions acquired under this Agreement (a) in a manner or for a purpose other than as needed to use the Services, (b) to develop new applications, (c) to utilize custom objects delivered outside of the Services, or (d) to access the Salesforce Campaigns, Leads, Opportunities, Cases, Solutions or Forecasts objects. Each Order Form will set forth a user limit (or other usage limitation), and the use of the Sitetracker Software by Customer is restricted to the number and type of users (or such other usage limitation) as set forth in the Order Form. Authorized User rights are granted for a specific time period as set out in an Order Form and use of the Services by Customer is limited to such time period. Authorized User rights may be transferred from one individual person to another but may not be shared or used concurrently by more than one person at a time. Login credentials may not be shared or concurrently used by more than one individual person.
2.2. Usage Restrictions. Customer will not (a) make the Services or content available to anyone other than the Authorized Users, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or include Services in a service bureau or outsourcing offering, (c) use the Services or Third Party Applications to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services or Third Party Applications to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or their related systems or networks, (g) permit direct or indirect access to or use of Services in a way that circumvents a contractual usage limit, or use the Services to access or use any of Sitetracker’s intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (i) copy the Services except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any of the Services, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, and (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services, (3) copy any ideas, features, functions or graphics of the Services, or (4) determine whether the Services are within the scope of any patent.
2.3. Free Trial. Sitetracker may make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer and Sitetracker mutually agreed upon to use the applicable Service(s) as stated in the “Term and Termination” section below or (b) termination by Sitetracker in its sole discretion in accordance with the “Term and Termination” section below.
2.4.1. ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD OR EARLIER TERMINATION.
2.4.2. DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SITETRACKER SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SITETRACKER’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, SITETRACKER AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SITETRACKER AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

3. CUSTOMER RESPONSIBILITIES

3.1. Customer Data. Customer is solely responsible for Customer Data as uploaded to the Services or otherwise provided to Sitetracker. Sitetracker expressly disclaims any liability arising from such Customer Data. Customer may not use the Services to transmit, store, display, distribute or otherwise make content available that is illegal, harmful, or offensive, including content that is defamatory, obscene, abusive, invasive of privacy, or pornographic.
3.2. Use and Access. Only Authorized Users may access the Services. Customer will ensure that each Authorized User uses the Services in accordance with applicable laws and this Agreement and maintains the security of their Credentials.
3.3. Internet Access. Customer is responsible for any network or internet connectivity required to access or use the Services.
3.4. General. In addition to obligations identified elsewhere in this Agreement, Customer will provide access to such information, personnel and systems Sitetracker reasonably requires to support the Subscription and Services, and respond to inquiries and provide approvals promptly.4.

4. INTELLECTUAL PROPERTY OWNERSHIP

4.1. Customer Data. Customer retains all right, title, and interest in the Customer Data, except as explicitly set forth herein. Customer grants Sitetracker a worldwide, royalty-free, sublicensable (solely to subcontractors in order to fulfill the purposes of this Agreement) nonexclusive, license during the Term to use Customer Data solely for the purpose of providing the Subscription and Services.
4.2. Services and Services Integrations. Except for the limited licenses granted herein, all right, title and interest in and to the Services, Services Integrations, and all Sitetracker Property is retained by Sitetracker. To the extent that any Sitetracker Property is incorporated into Customer Data, Sitetracker hereby grants Customer a limited, worldwide, royalty-free right and license to use such Sitetracker Property solely as incorporated into the Customer Data.
4.3. License by Customer to Use Feedback. Customer grants to Sitetracker and its Affiliates a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Authorized Users relating to the operation of Sitetracker or its Affiliates’ services.

5. CUSTOMER RESPONSIBILITIES

5.1. “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either party that (a) is marked or identified as “confidential” or with a similar designation, or (b) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential. Without limiting the foregoing, Confidential Information includes any information regarding a party’s strategic plans, product roadmap, business development strategies, and technical information such as the Services source code and security configurations.
5.2. Ownership and Use. Each party (the “Receiving Party”) may have access to the other party’s (the “Disclosing Party”) Confidential Information as a result of this Agreement. Confidential Information is and will remain the sole property of the disclosing Party. This Agreement’s terms are Confidential Information of the parties, but its existence is not. Each Receiving Party will (a) only use Confidential Information to fulfill its obligations hereunder, (b) only provide access to the Disclosing Party’s Confidential Information on an “as-needed” basis to its personnel, agents, and/or consultants who are bound by obligations materially similar to this section, and (c) maintain such Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Each party will promptly return or destroy the other party’s Confidential Information upon termination or expiration of this Agreement.
5.3. Exceptions. Confidential Information does not include, and the “Ownership and Use” section does not apply to, information that is (a) publicly available when disclosed or becomes publicly available without fault of the Receiving Party after disclosure, (b) rightfully communicated to the Receiving Party by entities not bound to keep such information confidential, whether prior to or following disclosure, (c) independently developed by the Receiving Party, or (d) approved for unrestricted disclosure by the Disclosing Party.
5.4. Mandated Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information as required (a) by court order or applicable law (provided that, to the extent legally permissible, the Receiving Party promptly notifies the Disclosing Party of such requirement and cooperates with the Disclosing Party’s reasonable and lawful efforts to prevent or limit the scope of such disclosure, at the Disclosing Party’s expense), or (b) to establish its rights under this Agreement.
5.5. Services Information. Sitetracker collects de-personalized information about Customer’s use of Services to fulfill Sitetracker’s obligations hereunder and improve the Services. Such information is Confidential Information of both Parties; aggregated, de-personalized information about the use of the Services by Sitetracker customers is Sitetracker Confidential Information and maybe used without restriction by Sitetracker.

6. REPRESENTATIONS AND WARRANTIES

6.1. Representations. Each party represents that (a) it has validly entered into this Agreement, and (b) the execution, delivery and performance of this Agreement will not conflict with any material contract with any third party.
6.2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

7. LIMITATION OF LIABILITY

7.1. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

8. INDEMNIFICATION

8.1. By Customer. Customer will indemnify, defend, and hold harmless Sitetracker and its directors, officers, shareholders, employees, and agents against any claims, liabilities, demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising from any third party claims (“Liabilities”) that (a) any Customer Data or Customer’s use of Customer Data with the Services, (b) Third Party Applications not supported by Sitetracker, or (c) the use of the Services in combination with any Third Party Applications not supported by Sitetracker, infringes or misappropriates such third party’s Intellectual Property Rights, or arising from Customer’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form.
8.2. Indemnification Procedures. The indemnified party will provide prompt written notice of any indemnifiable claim and will reasonably cooperate with the indemnifying party in connection with any such claim, at the indemnifying party’s cost. The indemnifying party will control, and may defend or settle, any such claim, provided that it may not enter into any settlement that imposes any liability or obligation on the indemnified party without the indemnified party’s written consent.

9. TERM AND TERMINATION

9.1. Term. This Agreement will remain in effect from the Effective Date until the last day of the free trial period. The maximum Term of the free trial shall not exceed one (1) month, unless otherwise mutually agreed in writing.
9.2. Termination. Sitetracker may terminate this Agreement for convenience upon five (5) days’ written notice to Customer.
9.3. Rights on Termination. Upon termination of this Agreement, Sitetracker will terminate Customer’s access to the Services.
9.4. Surviving Provisions. The sections titled “Intellectual Property Ownership,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability,” “Rights on Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

10. GENERAL PROVISIONS

10.1. Compliance with Laws. Each party will comply with all applicable laws in connection with this Agreement. The Services and other technology Sitetracker makes available may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any United States government denied-party list. Customer will not permit Authorized Users to access or use the Services in a United States-embargoed country or in violation of any United States export law or regulation.
10.2. Attribution. Sitetracker may identify Customer in standard marketing materials.
10.3. Entire Agreement; Amendment; Precedence. This Agreement together with any exhibits, Order Forms, and SOW constitutes the entire agreement between the parties regarding the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. This Agreement may not be modified except in writing signed by both parties. If there is a conflict between this Agreement and an Order Form or SOW, the Agreement will control unless the Order Form or SOW specifically references the provision of the Agreement to be superseded.
10.4. Injunctive Relief. The parties agree that a breach of the “Confidentiality” section above or misappropriation by a party of the other party’s intellectual property would cause immediate and irreparable harm not remediable by monetary damages. In such a circumstance, the harmed party may seek immediate injunctive relief, without the requirement to post bond or other security, without prejudicing any other remedies available to it at law or equity.
10.5. Notices. A communication intended to have legal effect under this Agreement must be written and delivered to (a) Sitetracker at the address set forth in the preamble, or (b) Customer at the address provided on the applicable Order Form, by personal delivery, certified mail (postage pre-paid, return receipt requested), or a commercial courier requiring signature for delivery, and will be effective on receipt or when delivery is refused. Operational communications, including changing a party’s notice address, may be delivered via email.
10.6. Assignment. Neither party may assign its rights or obligations hereunder without the other party’s prior express written consent (not to be unreasonably withheld) except if there is a merger, acquisition, corporate reorganization, or sale of all or substantially all of such party’s assets (where the acquiring or surviving entity is not a direct competitor of the other party). Subject to the foregoing, this Agreement will bind and inure the parties, their respective successors and permitted assigns.
10.7. Non-Solicitation. During and for one (1) year after the Term, Customer will not (a) induce or attempt to induce any current Sitetracker employee or independent contractor to cease their relationships with Sitetracker, or (b) recruit any former Sitetracker employee or independent contractor to perform services for Customer.
10.8. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.9. Third-Party Beneficiaries. Sitetracker’s licensors will have the benefit of Sitetracker’s rights and protections hereunder with respect to the applicable licensed content. Salesforce shall have the benefit of Sitetracker’s rights and protections hereunder with respect to the Salesforce Platform. There are no other third-party beneficiaries under this Agreement.
10.10. Waiver; Severability. A party’s waiver of a breach of this Agreement will not waive any other or subsequent breach. If any provision of this Agreement is invalidated by a court of competent jurisdiction, the provision will be deemed modified to the extent required while preserving the parties’ intent as closely as possible, and the remaining provisions of this Agreement will remain in effect.
10.11. Interpretation. Section headings are for reference only and will not affect the meaning or interpretation of this Agreement. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holiday.
10.12. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the state of Delaware, without regard to its conflict of law principles that would require a different result. Each party irrevocably consents to the exclusive jurisdiction of the state or federal courts located in Delaware for any action arising out of this Agreement and waives, to the fullest extent permitted by law, any objection to such venue.
10.13. Force Majeure. Neither Party will be liable for a failure to fulfill its obligations due to causes beyond its reasonable control that cannot be mitigated through the exercise of due care.