SOLOMO, INC. QUICKBOOKS INTEGRATION AGREEMENT
THIS AGREEMENT is entered into for the acquisition of Solomo, Inc. (“Solom”) services.
1.1 Scope. These terms and conditions (the “Solomo Quickbooks Integration Licensing Terms”) govern Customer’s use of the Products and Services included in the Sales Quotation referencing these terms. Together, the Sales Quotation and these Solomo Quickbooks Integration Licensing Terms constitute the “Agreement”. This Agreement is attached and incorporated into the Master Service Agreement between the same parties. The terms of the Master Service Agreement and the Statement of Work will control and supersede any contrary terms in this Agreement.
1.2 Product Description of the Solomo Quickbooks Integration Service (“Integration Service”). The Integration Service is a cloud-based integration platform used to integrate Quickbooks Online and Salesforce.
1.3 Customer Usage and Consent. Customer shall use the Solomo Quickbooks Integration Service solely for its own business purposes for which it is licensed and will not make its license or passwords available to any third party, reverse engineer any part of the Solomo Quickbooks Integration Service or resell or sub-license the Solomo Quickbooks Integration Service.
2. PAYMENTS AND FEES
2.1 Payment. Customer must pay the fees according to the payment terms in the Sales Quotation. All invoices not paid electronically are exclusively electronically mailed to Customer.
2.2 Failure to Pay. If Customer fails to pay any amount due under this Agreement, Solomo may, in its sole discretion, terminate this Agreement, or suspend or restrict provision of the Products and Services.
2.3 Disputes. If Customer believes in good faith that Solomo has incorrectly billed Customer, Customer must contact Solomo in writing within 15 days of the invoice date, specifying the error.
2.4 Taxes. Prices do not include applicable taxes. Solomo will invoice Customer for any applicable taxes, and Customer must pay these taxes. Where applicable, Customer must provide a tax-exemption claim to Solomo before placing an order. If Customer is required to withhold income taxes from its payment to Solomo, Customer agrees to send Solomo an official tax receipt within 60 days of payment to Solomo.
2.5 Delivery. Integration Services are deemed to be delivered and accepted on the License Term start date.
3.1 No Use or Disclosure. Recipient will not reproduce, use, disseminate, or disclose Confidential Information to any person, except to its employees and authorized representatives (i.e., temporary employees, consultants and contractors) who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as the confidentiality obligations set forth in this Agreement. Recipient will treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care.
3.2 Required Disclosure. Recipient may disclose Confidential Information (A) when approved in writing by Discloser; or (B) when necessary to comply with any law or valid order of a court or other governmental body, or as necessary to establish the rights of either Party — but only if Recipient (i) promptly notifies Discloser the details of the required disclosure, and (ii) gives Discloser all assistance reasonably required by Discloser to enable Discloser to take available steps to prevent the disclosure or to ensure that disclosure occurs subject to an appropriate obligation of confidence.
3.3 Responsibility for Representatives and Affiliates. Recipient is responsible for ensuring that its representatives and Affiliates fully comply with the obligations of the Recipient under this Confidentiality section of this Agreement.
4. TERM, TERMINATION, AND SUSPENSION
4.1 Term. The Solomo Quickbooks Integration Licensing Terms apply to the Products and Services set forth in the Sales Quotation beginning on the Effective Date. Start, End, and Expiration Dates for each particular product and service is set forth in the Sales Quotation, subject to early termination under these Solomo Quickbooks Integration Licensing Terms.
4.2 Termination for Cause.
(A)Uncured Material Breach by Either Party. If either Party materially breaches this Agreement, the non-breaching Party may give written notice of the breach to the breaching Party. If the breach is not cured within 5 days of the notice date, the non-breaching Party may immediately terminate this Agreement, in whole or in part. No notice shall be required for non-payment and Solomo may immediately terminate this Agreement.
(B)Termination Upon Notice. If a Party is in breach of any of the following sections of this Agreement, the non-breaching Party may terminate this Agreement, in whole or in part, immediately by giving the breaching Party written notice of the breach: CONFIDENTIALITY, INTELLECTUAL PROPERTY, and LICENSE AND RESTRICTIONS. A Party may also terminate this Agreement immediately upon notice to the other Party if the latter is subject to any of the following events (or events like or analogous to the following): (1) insolvency; (2) any form of voluntary or involuntary insolvency administration or liquidation; or (3) entering into an agreement or voluntary arrangement with its creditors for partial discharge of indebtedness.
4.3 Effect of Termination
(A)Unpaid Fees. Any fees that are unpaid as of the date of termination will be immediately due and payable.
(B)Survival. The termination or expiration of this Agreement will not affect any sections of this Agreement which by their nature survive termination or expiry, including the sections that deal with the following subject matters: definitions, payment and fees, confidentiality, term and termination, intellectual property, license compliance, limitation of liability, privacy, content monitoring and the “General Provisions” section of this Agreement.
5. INTELLECTUAL PROPERTY
5.1 Ownership. Solomo will continue to own the Solomo Technology. As between the Parties, Customer owns all rights, title, and interest in the Customer Data and Customer Content, subject to Solomo’s underlying intellectual property rights in the Integration Services, Reports, and other Solomo Technology.
5.2 No Modifications. Customer will not modify, create derivative works of, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code in any Solomo Technology, except to the extent permitted under the law.
6. LICENSE AND RESTRICTIONS
6.1 License Grant from Solomo
(A) Subject to the terms of this Agreement and Customer’s payment of the fees, Solomo grants Customer, during the License Term, a non-transferable, non-exclusive and worldwide license to:
(1) permit Users and End Users to access the Integration Services through the applicable interfaces;
(2) install, implement and use the Distributed Code;
(3) use and distribute Reports internally within Customer’s business, solely for Customer’s use of the Integration Services for its internal operations.
(B) Nothing in this Agreement grants Customer any express or implied license to use, distribute, modify, copy, link or translate the Distributed Code, other than for Customer’s use of the Integration Services.
6.2 Except as permitted under this Agreement, Customer will not:
(A) copy, use, reproduce, distribute, republish, download, display, post or transmit, in any form or by any means, the Integration Services, Distributed Code or Reports;
(B) sell, rent, lease, host or sub-license the Integration Services, the Distributed Code or the Reports;
(C) make Customer’s login IDs or passwords available to any third party;
(D) use, modify, copy, link, translate, or reverse engineer the Distributed Code to enhance or enable the use of any third-party product or service (except to the extent permitted under the law);
(E) remove, obscure or alter any proprietary notices associated with the Integration Services, Distributed Code or Reports;
(F) use the Integration Services Platform, Distributed Code or Reports in violation of any applicable law (including use on websites that contain unlawful material such as material that violates any obscenity, defamation, harassment, privacy or intellectual property laws); or
(G) allow the use of the same login ID simultaneously by two or more Users. Unless otherwise specifically limited in the Sales Quotation, User passwords and login IDs for the Integration Services will be provided to Customer in an amount mutually agreed upon by Customer and Solomo. Customer must take steps to prevent unauthorized access to its login IDs and passwords.
6.3 License Grant from Customer
(A) Customer grants Solomo and its Affiliates a non-exclusive, perpetual, worldwide and royalty-free license to use, copy, transmit, publish, display, distribute, and aggregate (including combination with similar data of other customers of Solomo or its Affiliates) any anonymous information derived from Customer Data, such as web browser, usage frequency, service availability, errors and performance type information. Such anonymous data shall not include personal information of Customer or its End User.
7. PRIVACY, INFORMATION SECURITY, AND COMPLIANCE
7.1 Compliance with Laws. Customer is responsible for complying with (including giving any notifications, obtaining any consents and making any disclosures required under) applicable privacy, security, and data protection laws, guidelines, regulations or industry standards or codes.
8. LIMITED WARRANTY, REMEDIES, AND DISCLAIMERS
8.1 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL Integration SERVICES ARE PROVIDED AS-IS AND ON AN AS NEEDED BASIS. Solomo HEREBY DISCLAIMS AND MAKES NO OTHER REPRESENTATION OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY OF THE Integration SERVICES, SERVICE AVAILABILITY, SATISFACTORY QUALITY, LACK OF VIRUSES, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES OF ITS THIRD PARTY PROVIDERS. Solomo SPECIFICALLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY, ORAL OR IN WRITING, CONCERNING THE VIABILITY, ENFORCEABILITY, OR COMPLIANCE OF USING THE Integration SERVICES IN A PARTICULAR COUNTRY AND/OR FOR A PARTICULAR PRODUCT OR SERVICE. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9.4 Customer Legal Counsel. CUSTOMER SHALL SOLELY RELY ON ITS OWN LEGAL COUNSEL AND DETERMINATIONS AS TO WHETHER THE USE OF THE Integration SERVICES ARE IN CONFORMANCE AND COMPLY WITH ALL LAWS, REGULATIONS AND POLICIES RELEVANT TO A PARTICULAR COUNTRY AND/OR FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF DAMAGES.
(A) In no event is either Party liable for any:
(1) special, indirect, moral, consequential, incidental, punitive or exemplary damages;
(2) loss of profits, use, revenue, or goodwill;
(3) business interruption, loss or corruption of data, cost of cover; or
(4) arising out of or concerning this Agreement, however caused.
(C) The maximum aggregate liability of each Party for each and all Claims (individually and together) under or relating to this Agreement or its subject matter is limited to an amount equal to the aggregate of the fees that must be paid by Customer under this Agreement during the 3 months before the initial Claim.
(D) This Limitation of Liability section:
(1) applies regardless of the form or source of Claim or Loss, whether the Claim or Loss was foreseeable, and whether a Party has been advised of the possibility of the Claim or Loss; and
(2) does not apply in any breach of confidentiality under this Agreement, Customer’s use of Solomo Technology beyond the scope of any license granted under this Agreement, or Customer’s failure to pay any amounts owing to Solomo under this Agreement.
10.2 IMPLIED WARRANTIES. To the maximum extent permitted by law, Solomo provides the Integration Services on an "as-is" basis. Solomo, its Affiliates, and third-party providers disclaim and make no other representation or warranty of any kind, express, implied or statutory, including representations, guarantees or warranties of merchantability, fitness for a particular purpose, non-infringement or accuracy. Customer acknowledges that (A) neither Solomo, its Affiliates nor its third party providers controls Customer equipment or the transfer of data over communications facilities (including the Internet); and (B) the Integration Services may be subject to limitations, interruptions, delays, cancellations, and other problems inherent in the use of the communications facilities (including search engines and social media channels). Solomo, its Affiliates, and its third party providers are not responsible for any interruptions, delays, cancellations, delivery failures, data loss, content corruption, packet loss, or other damage resulting from these problems.
12. GENERAL PROVISIONS
(A) Customer may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition of Customer, upon written notice to Solomo, if the assignment does not expand the scope of the license granted in the Products and Services and such surviving person or entity agrees to be bound to the terms of this Agreement.
(B) Solomo may assign this Agreement (or a part of it) to its Affiliates or a surviving person under a merger or acquisition of Solomo, upon written notice to Customer.
(C) Except as provided in this Assignment section, Customer may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior, written consent of Solomo.
12.2 Governing Law, Venue. This Agreement is governed by and construed under the laws of the state of Illinois, without regard to any conflict of law rules or principles, and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods.
12.3 Force Majeure. Neither Party is liable for failure to perform its obligations under this Agreement (except for any payment obligations) to the extent that performance is delayed, prevented, restricted or interfered with as a result of any causes beyond its reasonable control, including acts of God, terrorism, labour action, fire, flood, earthquake, governmental acts, orders or restrictions, failure of third-party providers, denial of service attacks and other malicious conduct, utility failures or power outages.
12.4 Injunctive Relief. Actual or threatened breach of certain sections of this Agreement (such as, without limitation, sections on intellectual property (including ownership), license, privacy, data protection and confidentiality) will cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Either Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
12.6 Customer Responsibility. Customer is responsible for all acts and omissions of any person whom Customer is permitted by this Agreement to allow use or access of the Products and Services.
12.7 No Agency. Nothing in this Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership or trust between the Parties. No Party has authority to bind the other Party.
12.8 Third-Party Beneficiaries. Customer acknowledges and agrees that Solomo’s licensors are third-party beneficiaries of this Agreement, with the right to enforce the obligations in this Agreement directly against Customer.
12.9 Customer’s Purchase Order. Any terms or conditions in Customer’s purchase order or any other related documentation submitted by or on behalf of Customer to Solomo do not form part of this Agreement and are void, unless otherwise expressly agreed in writing and signed by both Customer and Solomo.
12.10 Waiver, Modification. Neither Party’s waiver of the breach of any section constitutes a waiver of that section in any other instance. This Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the Parties.
12.11 Entire Agreement. See Article 20 of Master Service Agreement.
12.12 Counterpart. This Agreement (or a component) may be executed in one or more counterparts, each of which constitutes an original and all of which taken together constitutes the same agreement. Each Party may sign this Agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies.
12.13 Severability. If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the term and this Agreement will continue in full force and effect.
12.14 Interpretation. In this Agreement, unless otherwise stated:
(A) Other grammatical forms of a defined word or phrase have a corresponding meaning;
(B) No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it; and
(C) All headings are for ease of reference only and not intended to affect meaning or interpretation.
13.1 “Solomo Technology” means technology owned by Solomo or licensed to Solomo by a third party (including software tools, algorithms, software (in source and object forms), user interface designs, architecture, toolkits, plug-ins, objects, network designs, processes, know-how, methodologies, trade secrets, Products and Services, Reports, Documentation, and any related intellectual property rights throughout the world) and any of their derivatives, modifications, improvements, enhancements or extensions, whenever developed.
13.2 “Solomo” means the entity or entities identified as Solomo in the signature block of the Sales Quotation.
13.3 “Affiliate” means, for a Party, any other entity that controls, is controlled by or under common control with the Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of the other person through at least 50% of the shares, voting rights, participation or economic interest in this person.
13.4 “Claim” means a claim, action, proceeding or demand made against a person or entity, however arising and whether present or future, fixed or unknown, actual, threatened or contingent.
13.5 “Confidential Information” means non-public information (including copies, summaries and extracts) disclosed by a Party or its Affiliates (the "Discloser") to the another Party or its Affiliates (the "Recipient") which is: (A) identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic or electronic form; or (B) disclosed in non-tangible form, identified as confidential at the time of disclosure and summarized in writing labelled as “confidential” and delivered to Recipient within 15 days after disclosure. Confidential Information does not include information that: (1) is or becomes generally publicly available at or after the time of disclosure through no fault of Recipient; (2) was known to Recipient, free of any confidentiality obligations, before its disclosure by Discloser; (3) becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser; or (4) is independently developed by Recipient without use of Confidential Information.
13.6 “Customer Content” means any information or material that is provided to Solomo in connection with Customer’s use of Integration Services, such as audio, video, text, and images.
13.7 “Customer Data” means any data or information not supplied by Solomo that Customer, its Users, and End Users transmit via Customer's Solomo Quickbooks Integration account.
13.9 “Customer” means the entity identified in the Sales Quotation as “Customer”.
13.10 “Distributed Code” means APIs, or other code provided by Solomo for use of the Integration Services.
13.11 “Documentation” means the technical user manual describing the features and functionalities of the service or software, if applicable, and the description of the service or software contained in this Agreement. Documentation does not include any forums or content contributed by any third party.
13.12 “End User” means any individual or company that uses the Solomo Quickbooks Integration account enabling use of the Integration Services.
13.13 “Effective Date” means the effective date stated in the Sales Quotation.
13.14 “License Term” means the duration of the license granted for the Integration Services, as specified in the Sales Quotation, or any shorter term arising from a termination of this Agreement.
13.15 “Loss” means any damage, loss, cost, expense or liability incurred by a person or entity.
13.16 “Integration Services” means the enterprise solutions hosted by or on behalf of Solomo (and Distributed Code, where applicable), as set out in the “Solomo Integration Services” section of the Sales Quotation (including the Integration Services).
13.17 “Party” means Solomo or Customer, as applicable.
13.18 “Products and Services” means Integration Services and Professional Services procured by Customer, as set out in the Sales Quotation.
13.19 “Professional Services” means any consulting, training, implementation or technical services provided by Solomo to Customer, as set out in the “Professional Services” section of the Sales Quotation.
13.20 “Report” means any graphical or numerical display of Customer Data that contains Solomo’s proprietary design, look and feel, which is generated by the Integration Service.
13.21 “Sales Quotation” means the sales quotation form, statement of work, purchase authorization letter or other written or electronic order for the Products and Services, which is executed between Solomo and Customer, and which references these Solomo Quickbooks Integration Terms.
13.22 "User" means Customer’s employees, third-party contractors described in the “Outsourcing and Third-party Access” section of this Agreement, or those whom Customer has permitted under this Agreement to allow access to the Integration Services (including any individual using the Integration Services under Customer’s Solomo Quickbooks Integration account).