This Master Subscription Agreement ("Agreement") is made on the Effective Date
between Kimble and Customer pursuant to an Order Form.
Definitions defined in the Order Form shall bear the same meaning when used in
this Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1 Definitions and Interpretation
1.1 In this Subscription Agreement, unless expressly stated to the contrary, the
following expressions shall have the following meanings:
“Account Manager“ means the person appointed by Kimble from time to time (and
notified to Customer) who shall serve as Customer’s primary contact for Customer’s
activities under the Agreement.
“Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or
is under common Control with the subject entity.
“Agreement” means the agreement formed by this Subscription Agreement and all
Order Forms. “API” has the meaning given in clause 3.3.
“Availability” means the percentage resulting from the following calculation:
[1-(Down Time in the applicable month being measured/Total Time)] x
100 expressed to two (2) decimal points with the second decimal place rounded up or
down to the nearest one-hundredth (1/100) of a percentage point.
“Baseline Currency” means the currency identified on the Order Form and should no
such currency be specified on the Order Form, shall mean GBP.
“Business Day” means a day which is not a Saturday, Sunday or public holiday in
England. “Business Hour” means one hour between 9am and 5pm GMT on a
Business Day.
“Claims” means any loss, damage or costs (including reasonable attorneys’ fees)
incurred in connection with any claim, demand, suit or proceedings.
“Control” means direct or indirect ownership or control of more than 50% of the
voting interests of a company or the legal power to direct or cause the direction of the
general management of the company and “Controls” and “Controlled” shall be
construed accordingly.
“Customer” means the person, company or other legal entity specified in the Order
Form. “Customer Data” means all electronic data or information submitted by
Customer in the course of using the Service.
“Customer Support User” has the meaning given in paragraph 3.3 of Schedule 2
(Support Services).
“Down Time” means the number of minutes the Service is not Operational excluding
Scheduled Down Time other than as provided for in paragraph 8.1 of Schedule 2
(Support Services).
“Due Date” has the meaning given in clause 4.2.
"Effective Date" means the effective date specified in the first Order Form executed
by and between the parties.
“Emergency Maintenance” means maintenance required outside the Scheduled
Maintenance Window or necessary within the Scheduled Maintenance Window but
not scheduled in advance pursuant to paragraph 8.3 of Schedule 2 (Support
Services).
“Established Target” means a target fix timeline reasonably established by Kimble
and communicated to Customer with respect to any Incidents.
“Exhibit” means an exhibit of a Schedule.
“Fees” means fees and charges payable by Customer to Kimble as set out in an Order
Form or as set out in this Subscription Agreement.
“Full Copy Sandbox” means a Sandbox from Salesforce, which is a complete copy of
the Customer’s Production environment.
“Helpdesk Services” means support services provided to Customer by help desk
technicians sufficiently qualified and experienced to identify and resolve support
issues relating to the Service.
“Incident” means any problem with the Service for which Customer requests support
in conformance with Schedule 2 (Support Services). Any impact, regardless of how
minor, to Customer will be considered as an outage/incident and the Incident
Management Process will be initiated.
“Incident Management Process” means the incident management process of Kimble
which responds and resolves incidents through a method by which succeeding levels
of technical expertise and related management are engaged in resolution activities.
“Incident Notification” means receipt by Kimble of a notification of an Incident
submitted by Customer through Kimble Incident Management System.
"Initial Period" means the initial period specified in an Order Form.
“Intellectual Property Rights” means all patents, rights to inventions, utility models,
copyright and related rights, trade marks, service marks, trade, business and domain
names, rights in trade dress or get-up, rights in goodwill or to sue for passing off,
rights in designs, rights in computer software, database rights, know-how, trade
secrets and any other intellectual property rights, in each case whether registered or
unregistered and including all applications for and renewals or extensions of such 
rights, and all similar or equivalent rights or forms of protection in any part of the
world.
"Jurisdiction" means England and Wales unless stated otherwise in the Order Form.
"Kimble" means Kimble Applications Limited with company number 07445594 and
its registered address at 8 Boundary Row, London, SE1 8HP’.
“Kimble Agent” means the Kimble monitoring tool that resides in Customers
Production Organization, and automatically logs incidents with the Service, and in
some cases, resolve Service issues. The Kimble Agent, will also automatically gather
anonymous organisation metrics for purposes of benchmarking.
“Kimble Incident Management System” means https://support.KimbleApps.com
and/or other designated websites. For customers purchasing ‘Enhanced’ Support
Services (as detailed in the relevant Order Form, Kimble will also provide Customer
with the ability to log support cases through the Kimble helpdesk (via telephone
between the hours of 9am and 5pm (UK time).
“Kimble Initial Response Due” means the number of Business Hours between
Incident Notification and an update by Kimble on the incident within the Kimble
Incident Management System.
“Kimble Knowledgebase” means a repository of Kimble articles to assist Customer
with support and “how-to” questions in respect of the Service.
“Major Release” means a release of the Service made available by Kimble to its
customers generally which has materially new functionality from previous versions
of the Service and is denoted by (i) a change in the number immediately to the left
and/or the right of the first decimal point in the Service version number, eg 1.25 to
2.1, or 1.25 to 1.26, or (ii) the name of “Winter” or “Summer” followed by the year
where that season ends in the northern hemisphere (e.g. “Winter 18”, will be a Major
Release which is typically available in November 2017, and “Summer 18”, will be a
Major Release typically available in June 2018).
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other
harmful or malicious code, files, scripts, agents or programs.
“Minor Release” means each release of the Service denoted by a change to the right
of the second decimal point in the Service version number (eg 1.25.12 to 1.25.13) and
consisting of bug fixes and patches to the Service made available from time to time
by Kimble to its customers generally but not constituting a Major Release.
“Operational” means the state in which the Service or any component thereof are
functional and available to Customer in Customer’s Production environment in
material compliance with the Agreement and the Documentation.
“Order Form” means an order form incorporating this Subscription Agreement by
reference and executed by and between the parties.
“Payment Currency” means the currency of the Fees quoted on the Order Form.
“Production” means the Salesforce.com organization (environment) used by
Customer for production use with all active Users.
“Renewal Period” means a period of 12 months commencing on the day following the
end of the Initial Period and each anniversary of such date.
“Salesforce.com” means salesforce.com, inc., a Delaware corporation having its
principal place of business at The Landmark @ One Market, Suite 300, San
Francisco, California 94105.
“Salesforce.com Platform” has the same meaning as ‘Platform’ in Schedule 1
(Salesforce.com Service Agreement).
“Sandbox” means a Salesforce.com organization (environment) used by Customer for
testing and training purposes.
“Schedule” means a schedule of this Subscription Agreement.
“Scheduled Down Time” means the number of minutes of the Service is not
Operational due to Scheduled Maintenance.
“Scheduled Maintenance” means maintenance of the Service which is scheduled and
notified by Kimble to Customer (through subscription to automatic notifications sent
to Customer via the Service (or via email) in advance.
“Scheduled Maintenance Window” means the period of time notified by Kimble to
Customer via the Service or by email in which Scheduled Maintenance may occur.
“Service” means the online, Web-based application provided by Kimble via
https://login.salesforce.com and/or other designated websites, as described by the
User Guide, including the Salesforce.com Platform.
“Service Levels” means the service levels set out in Exhibit A of Schedule 2 (Support
Services).
“SLA” means the service level agreement set out in Exhibit A of Schedule 2 (Support
Services).
“Subscription” means a licence for a User to use the Service in accordance with the
terms of this Agreement.
“Subscription Agreement” means clauses 1 to 13 of this subscription agreement, its
Schedules and Exhibits.
“Subscription Fee” means the fee for Subscriptions as identified in all applicable
Order Forms. “Subscription Term” has the meaning given in clause 10.2.
“Support Service Level” means the level of support provided to Customer, either
‘Standard’ or ‘Enhanced’, as selected in the relevant Order Form.
“Support Services” means the services provided by Kimble in respect of the
Supported Version in accordance with Schedule 2 (Support Services).
“Supported Version” means: (i) the version of the Service which includes the most
recent Major Release; and/or (ii) the version of the Service which includes the Major
Release released immediately prior to the most recent Major Release.
“System Failures” means un-handled system errors in a Production environment
where the error or warning message does not provide sufficient information, along
with the User Guide for Customer to fix the error.
"Term" means the Initial Period and any Renewal Periods.
“Total Time“ means 1,440 minutes (being the number of minutes in one calendar
day) multiplied by the number of calendar days in the month during which
Availability is being measured.
“Upgrade” has the meaning given in paragraph 6.1 of Schedule 2 (Support Services).
“User” means an individual who is authorised by Customer to use the Service, for
whom a Subscription has been purchased by Customer, and who has been supplied a
user identification and password by Customer (or by Kimble at Customer’s request).
Users may include employees, consultants, and contractors of Customer and/or,
subject to clause 2.3, Customer’s Affiliates.
“User Account” means an account within the Service for which a User has been
assigned a user identification and a password.
“User Guide” means the online user guide for the Service, accessible via the home
page or other areas of the Service, as updated from time to time.
1.2 A person means an individual, corporate or unincorporated body (whether or not
having separate legal personality) and that person's legal and personal
representatives, successors or permitted assigns. A reference to a company shall
include any company, corporation or other body corporate, wherever and however
incorporated or established. Words in the singular shall include the plural and vice
versa. A reference to a statute or statutory provision is a reference to it as it is in force
for the time being, taking account of any amendment, extension, replacement or reenactment and includes any subordinate legislation for the time being in force made
under it. The words “include”, “includes”, “included” or “including” (or any similar
term) wherever they are used will be deemed to be followed by the words “without
limitation”. A reference to a clause is to clause of this Subscription Agreement and a
reference to a paragraph is to the relevant paragraph of the Schedule or Exhibit in
which it appears. Clause, Schedule, Exhibit and paragraph headings shall not affect
the interpretation of this Agreement.
1.3 In the event, and to the extent only, of any conflict between an Order Form and
the Subscription Agreement, the Agreement shall be construed according to the
following order of priority: (i) the Subscription Agreement excluding its Schedules 
and Exhibits; (ii) the Schedules; (iii) the Exhibits; and (iv) each Order Form, with a
more recent Order Form taking precedence over an earlier Order Form.
2 Service
2.1 Provision of Service. Kimble hereby grants Customer a non-exclusive, revocable,
non- transferable and non-sublicensable right to enable its Users to use the Service
during the Term solely for Customer’s own internal business purposes subject to the
terms and conditions of this Agreement. All rights not expressly granted to Customer
are reserved by Kimble and its licensors. Customer and its Users may not access the
Service if Customer is a direct competitor of Kimble, except with Kimble’s prior
written consent. In addition, Customer and its Users may not access the Service for
benchmarking or competitive purposes. Kimble shall make the Service available to
Customer and its Users pursuant to this Agreement and all Order Forms during the
Term. Customer agrees that its purchase of the Service is neither contingent upon the
delivery of any future functionality or features nor dependent upon any oral or
written public comments made by Kimble with respect to future functionality or
features. Access to the Service is provided through Subscriptions and the Service may
be accessed by no more than the specified number of Users. Customer’s use of the
Service is subject to Kimble’s right to require Kimble to deploy in Customer’s
Production environment such Major Releases and/or Minor Releases as provided by
Kimble. Customer agrees to permit Kimble to push Major Releases and/or Minor
Releases (including the latest Major Releases and/or Minor Releases made available
by Kimble to its customers generally) to Customer’s Sandbox and Production
environments.
2.2 By entering into this Agreement Customer accepts the terms and conditions in
respect of Customer’s and its Users’ use of the Salesforce.com Platform set out in
Schedule 1 (Salesforce.com Service Agreement). As a condition of using the Service,
Customer, if already a Salesforce.com customer, must (i) activate the multi
currencies feature within Customer’s Production environment on the Salesforce.com
Platform, as defined in the help section of the Salesforce.com Platform, before
installation by Kimble, (ii), use the Salesforce Enterprise or Unlimited Editions of the
Salesforce.com Platform, and (iii) activate the Chatter feature within Customer’s
Production environment on the Salesforce.com Platform as defined in the help
section of the Salesforce.com Platform, before installation by Kimble.
2.3 Customer Affiliates. Affiliates of Customers may purchase Subscriptions and use
the Service and the Support Services, subject to the terms of this Agreement by
executing Order Forms provided Customer shall be liable to Kimble for the acts and
omissions of any of Customer’s Affiliates and/or their Users using the Service and/or
the Support Services as though they were the acts and omissions of Customer. Any
Claims suffered by Kimble in connection with the Agreement arising directly or
indirectly out of any act or omission of Customer’s Affiliates and/or their Users in
breach of the Agreement shall be deemed to be a loss caused by Customer and such
loss shall be recoverable by Kimble against Customer. Any Claims suffered by any or
all of Customer’s Affiliates in connection with this Agreement shall be deemed to be
Claims suffered by Customer and shall only be recoverable by Customer against
Kimble to the extent they would be recoverable by Customer from Kimble under this
Agreement had they been Claims suffered by Customer.
3 Use of the Service
3.1 Kimble Responsibilities. Kimble shall use commercially reasonable efforts to: (i)
not use, modify or disclose to anyone other than Users the Customer Data except as
expressly permitted by this Agreement; (ii) to the extent the Customer Data
comprises “personal data” within the meaning of applicable data protection laws and
regulations, and in respect of which it is hereby acknowledged that Kimble is acting
as data processor only: (a) process the Customer Data (in accordance with this
Agreement, Customer’s instructions and applicable data protection laws and
regulations, (b) take appropriate technical, organisational and security measures
against unauthorised access to or unauthorised alteration, disclosure, destruction or
loss of Customer Data, and (c) take reasonable steps to ensure that employees,
consultants, contractors and agents used by Kimble to provide the Service are aware
of and are suitably trained in such technical, organisational and security measures;
(iii) maintain the security and integrity of the Service and the Customer Data; (iv)
provide Support Services in accordance with Schedule 2 (Support Services); and (v)
use commercially reasonable endeavours to make the Service available 24 hours a
day, 7 days a week, except for: (a) Scheduled Down Time (of which Kimble shall give
at least 8 hours’ notice via the Service and which Kimble shall schedule to the extent
reasonably practicable on a Saturday or Sunday from 01:00 a.m. GMT Saturday to
7:00 a.m. GMT Monday); or (b) any unavailability caused by circumstances beyond
Kimble’s reasonable control, including without limitation, acts of God, acts of
government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other
labour problems (other than those involving Kimble employees), computer,
telecommunications, Internet service provider or hosting facility failures or delays
involving hardware, software or power systems not within Kimble’s possession or
reasonable control, and denial of service attacks. Kimble may make changes or
updates to the Service (such as infrastructure, security, technical configurations,
application features, etc.) during the Term, including to reflect changes in
technology, industry practices and patterns of system use. The Service as described
in this Agreement and the Documentation is subject to change at Kimble’s discretion;
however, Kimble’s changes to the Service will not result in a material reduction in the
level of performance, security, functionality or availability of the Service provided to
Customer for the duration of the Term.
3.2 Customer Responsibilities.
3.2.1.Customer is responsible for all activities that occur in User Accounts and for
Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility
for the accuracy, quality, integrity, legality, reliability and appropriateness of all
Customer Data and shall ensure that all instructions given by it to Kimble in respect
of the Customer Data will be in compliance with applicable data protection
legislation; (ii) use commercially reasonable endeavours to prevent unauthorised
access to, or use of, the Service, and notify Kimble promptly of any such
unauthorised access or use; and (iii) comply with all applicable local, state, federal
and foreign laws in using the Service, including without limitation all applicable data
protection laws and regulations.
3.2.2.Customer shall use the Service and the Support Services solely for its internal
business purposes as contemplated by this Agreement and shall not: (i) license,
sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise 
commercially exploit or make the Service or Support Services available to any third
party, other than to Users or as otherwise contemplated by this Agreement; (ii) send
spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(iii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or
tortious material, including material that is harmful to children or violates third
party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt
the integrity or performance of the Service or the data contained therein; or (vi)
attempt to gain unauthorised access to the Service or its related systems or networks,
(vii) modify or make derivative works based upon the Service or the Content; (viii)
create Internet “links” to the Service or “frame” or “mirror” any Content on any other
server or wireless or Internet-based device; or (ix) reverse engineer or access the
Service in order to (a) build a competitive product or service, (b) build a product
using similar ideas, features, functions or graphics of the Service, or (c) copy any
ideas, features, functions or graphics of the Service. Subscriptions cannot be shared
or used by more than one individual User but may be reassigned from time to time to
new Users who are replacing former Users who have terminated employment or
otherwise changed job status or function and no longer use the Service.
3.3 API usage. The Service offers integration capabilities via an application
programming interface (“API”). Customer is limited to the use of the API as follows:
1,000 calls/day/User (aggregated over all Users under the account), up to an
aggregate maximum of 1,000,000 calls/day/account.
3.4 Salesforce Services. Subject to clause 2.2 and this clause 3.4 Customer will be
granted access to the Salesforce.com Platform and also to certain limited parts of
other Salesforce.com services. Customer may not use Salesforce.com application
functions accessed through the Service other than those described in the User Guide
and the OEM user license definition, located at
https://developer.salesforce.com/docs/atlas.enus.packagingGuide.meta/packagingGuide/oem_user_license_comparison.htm?sear
ch_text=oe m even if Customer has access to them. Customer may not create or use
additional custom objects beyond those which appear in the Service. If Customer
requires additional facilities of the Salesforce.com applications service, Customer
must order these additional services directly from Salesforce.com and Customer’s
access to and use of such additional services will be governed by the terms of the
applicable agreement between Customer and Salesforce.com. If Customer is in any
doubt as to what services of Salesforce.com Customer is permitted to use under this
Agreement Customer should consult Kimble.
3.5 Storage Space. The maximum disk storage space provided to Customer at no
additional charge is an aggregate of 2Gb for each User for whom Customer requests a
Subscription. If Customer chooses to add Users who are existing Salesforce.com
users, then the Service will share the data storage already provided by Salesforce.com
for such Users. If Customer’s Users are not existing Salesforce.com users at the date
they become Users, then Kimble shall facilitate the provision of an additional 2Gb of
disk storage on the Salesforce.com Platform for each such User. If Customer is an
existing customer of Salesforce.com at the Effective Date, Customer will be charged
by Salesforce.com for any disk storage required by a Customer and/or its Users
exceeding these limits (“Excess Disk Storage”) at the then-current storage fees
notified by Salesforce.com to Customer. If Customer is not an existing customer of
Salesforce.com at the Effective Date, Customer will be charged for Excess Disk 
Storage by Kimble at the then-current storage Fees notified by Kimble to Customer.
Kimble will use reasonable endeavours to notify Customer when the average storage
used per license reaches approximately 90% of the maximum storage per User;
however, any failure by Kimble to so notify Customer shall not affect Customer’s
responsibility for such additional storage charges. Kimble reserves the right to
establish or modify its general practices and limits relating to storage of Data.
3.6 Third-Party Services.
3.6.1 In this clause 3.6 the following terms shall have the following meanings:
“Customer Parties” means Customer’s Affiliates, the respectively each of Customer’s
and Customer’s Affiliates’ partners, officers, employees, contractors, directors, subcontractors and agents;
“Third-Party Services” means services (which may include software) provided by
third parties other than Salesforce.com which:
(a) may be accessed or offered via the Service, including: (i) implementation,
customisation and other consulting services related to Customer’s use of the Service
and applications that work in conjunction with the Service, such as by exchanging
data with the Service or by offering additional functionality within the user interface
of the Service through use of an API; (ii) programs and associated APIs made
available via the Salesforce.com Platform from time to time; and (iii) additional
functionality (not defined as part of the Service and subject to Third-Party Terms)
which may be made available by Kimble to Customer for an additional Fee on a passthrough or OEM basis; and
(b) are governed by and subject to Third-Party Terms; and “Third-Party Terms”
means terms and conditions governing Customer’s access to and use of any ThirdParty Services set out in a separate agreement between Customer and the relevant
provider of Third-Party Services.
3.6.2 Access to and use of Third-Party Services by Customer and the Customer
Parties is governed by and subject to: (i) the applicable Third-Party Terms; and (ii)
the terms of use and any other terms and conditions applicable to users of the ThirdParty Services. Kimble makes no representation, warranty or assurance to Customer
or the Customer Parties in respect of access to and use of the Third-Party Services,
the availability and content of the Third-Party Services or any goods and services
offered via the Third-Party Services, whether or not such products or services are
designated by Kimble as “certified,” “validated” or otherwise.
3.6.3 To the maximum extent permitted by law, Kimble has and shall have no
liability to Customer or the Customer Parties in respect of any claims arising from or
in connection with Customer’s relationship with any provider of Third-Party Services
or Customer’s or the Customer Parties’ access to and use of the Third-Party Services.
3.6.4 Kimble will not transmit the Customer Data outside the Service except as
expressly permitted by this Agreement. If Customer transmits or authorises the
transmission of Customer Data to any Third-Party Service to which Customer has 
subscribed, whether or not Customer uses theService to do this, Customer does so at
its own risk and Customer acknowledges that the security and validity of such
transmission of Customer Data is Customer’s sole responsibility.
3.7 Publicity. Neither party may issue press releases relating to this Agreement
without the other party’s prior written consent which shall not be unreasonably
withheld or delayed. Either party may include the name and logo of the other party
in lists of customers or vendors in accordance with the other party’s standard
guidelines.
3.8 Data Protection Agreement: The parties will enter into a separate data processing
agreement, or agree additional clauses to be incorporated into this Agreement,
through an addendum, by the 25th of May 2018 (the “Data Processing Agreement”),
3.9 Compliance with Data Processing Agreement: Subject to clause 3.8, Kimble shall
comply with its obligations under the Data Processing Agreement, or additional
addendum.
4 Fees & Payment
4.1 Fees. Payment obligations cannot be cancelled and all amounts paid are nonrefundable. Customer is responsible for paying for all Subscription Fees ordered for
the entire Subscription Term whether or not such Subscriptions are actively used.
Customer shall pay all Fees hereunder by the Due Date. Except as otherwise specified
herein or in an Order Form Fees are based on services purchased and not actual
usage. The number of Subscriptions may be increased during the then-current Initial
Period or Renewal Period at the same pricing as that for the pre-existing
Subscriptions prorated for the remainder of the applicable Subscription period in
effect at the time the additional Subscriptions are added, and the added
Subscriptions shall terminate on the same date as the pre-existing Subscriptions. The
number of Subscriptions purchased cannot be decreased during the then-current
Initial Period or Renewal Period or below a minimum of 10 Users or as otherwise
stated in an Order Form in any Renewal Period. Kimble will not modify its Fees for
the Initial Period unless specifically stated in the Order Form and thereafter subject
to clause 4.3 Fees will be increased in line with the RPI All Items index published by
the UK’s Office for National Statistics at
https://www.ons.gov.uk/economy/inflationandpriceindices/timeseries/czbh/mm23
(as updated from time to time) plus 3% for each Renewal Period. Kimble reserves the
right to introduce additional Fees at any time for new Service modules not initially
used by Customer, unless otherwise stated in the Order Form. All pricing terms are
confidential and Customer agrees not to disclose them to any third party.
4.2 Invoicing & Payment. Fees for the Service (which include the fees for the Support
Services) will be invoiced in advance or otherwise in accordance with the relevant
Order Form. Unless otherwise stated in the Order Form, Fees are due on receipt of
invoice (“Due Date”). Kimble shall not deploy the Service into Customer’s
environment or make the Subscriptions available to Users until it has received
payment of the Subscription Fees from Customer. Customer is responsible for
maintaining complete and accurate billing and contact information on the Service.
4.3 Currency Fluctuations. In addition to any increases pursuant to clause 4.1, if the
Payment Currency is not the Baseline Currency, Fees for each Renewal Period
(“Relevant Renewal Period”) will be increased or decreased (as applicable) by the
percentage increase or decrease in the value of the Payment Currency relative to the
Baseline Currency by reference to exchange rates published online by the Financial
Times and measured between the following times: (i) 9am GMT on the first Business
Day of the Initial Period or Renewal Period (as applicable) immediately preceding
the Relevant Renewal Period; and (ii) 9am GMT on the day 60 calendar days before
the start of the Relevant Renewal Period if such day is a Business Day, otherwise the
Business Day immediately preceding such day.
4.4 Overdue Payments. Any payment not received from Customer by the Due Date
may accrue (except with respect to charges then under reasonable and good faith
dispute), at Kimble’s discretion and without further notice, late charges at the rate of
1% of the outstanding balance per month, or the maximum rate permitted by law,
whichever is lower, from the date such payment was due until the date paid.
4.5 Suspension of Service and Support Services. If Customer’s account is 30 days or
more overdue (except with respect to charges then under reasonable and good faith
dispute) and Kimble has notified Customer of such late payment, in addition to any
of its other rights or remedies, Kimble reserves the right to suspend the Service and
Support Services provided to Customer, without liability to Kimble, until such
amounts are paid in full.
4.6 Taxes. Unless otherwise stated, Fees do not include value added tax or any other
direct or indirect local, state, federal or foreign taxes, levies, duties or similar
governmental assessments of any nature, including, use or withholding taxes
(collectively, “Taxes”). Customer is responsible for paying all Taxes associated with
its purchases hereunder. If Kimble has the legal obligation to pay or collect Taxes for
which Customer is responsible under this clause, the appropriate amount shall be
invoiced to and paid by Customer, unless Customer provides Kimble with a valid tax
exemption certificate authorised by the appropriate taxing authority.
5 Proprietary Rights
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder,
Kimble alone (and/or its licensors, where applicable) reserves all rights, title and
interest in and to the Service and the Support Services, including all related
Intellectual Property Rights. No rights are granted to Customer hereunder other than
as expressly set forth herein. This Agreement is not a sale and does not convey to
Customer any rights of ownership in or related to the Service, the Support Services,
Kimble technology or the Intellectual Property Rights of Kimble or its licensors. The
Kimble name, the Kimble logo and the product names associated with this service
are trademarks of Kimble or third parties and no right or license or granted to use
them.
5.2 Customer Data. Customer warrants on an ongoing basis throughout the Term
that it owns all rights, title and interest in and to all Customer Data or has obtained
any and all rights and permissions necessary for Kimble to store, process and
transfer Customer Data as required for Kimble to perform its obligations under this
Agreement. Customer Data is deemed Confidential Information under this 
Agreement. Kimble shall not access Customer’s User Accounts, including Customer
Data, except as provided for in clause 5.3. In order to respond to such Customer
requests, Customer consents to Kimble having access to the customer organisation
within the Salesforce.com organisation by way of a Partner Administrator Licence.
5.3 License to use Customer Data. Customer hereby grants to Kimble (including its
agents and contractors) a worldwide non-exclusive, royalty-free, perpetual license to
use Customer Data as follows: (i) to provide the Service and the Support Services and
to perform its obligations under this Agreement; (ii) for auditing/accounting
purposes or as may be required by law; (iii) to measure and improve its products and
services; and (iv) in Aggregate form for its own purposes and to provide services and
data to third parties, including other customers of Kimble, and in this clause 5.3
“Aggregate” means an anonymized form in which data is combined with data from
other customers of Kimble using the Service and reasonably precludes the
identification of the source of such data.
5.4 Suggestions. Kimble shall have a royalty-free, worldwide, transferable,
sublicenseable, irrevocable, perpetual license to use or incorporate into the Service
and/or the Support Services any suggestions, enhancement requests,
recommendations or other feedback provided by Customer or its Users relating to
the operation of the Service.
6 Confidentiality
6.1 Definition of Confidential Information. As used herein, “Confidential
Information” means all confidential information of a party (“Disclosing Party”)
disclosed to the other party (“Receiving Party”), whether orally or in writing, that is
designated as confidential or that reasonably should be understood to be confidential
given the nature of the information and the circumstances of disclosure, including
the terms and conditions of this Agreement (including pricing and other terms
reflected in all Order Forms hereunder), the Customer Data, the Service, the Support
Services, business and marketing plans, technology and technical information,
product designs, and business processes. Confidential Information (except for
Customer Data) shall not include any information that: (i) is or becomes generally
known to the public without breach of any obligation owed to the Disclosing Party;
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party
without breach of any obligation owed to the Disclosing Party; (iii) was
independently developed by the Receiving Party without breach of any obligation
owed to the Disclosing Party; or (iv) is received from a third party without breach of
any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential
Information of the Disclosing Party for any purpose outside the scope of this
Agreement, except with the Disclosing Party’s prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential
Information of the other party in the same manner that it protects the confidentiality
of its own confidential information of like kind (but in no event using less than
reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose
Confidential Information of the Disclosing Party, it shall provide the Disclosing Party
with prior notice of such compelled disclosure (to the extent legally permitted) and
reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to
contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or
use) any Confidential Information of the Disclosing Party in breach of confidentiality
protections hereunder, the Disclosing Party shall have the right, in addition to any
other remedies available to it, to seek injunctive relief to enjoin such acts, it being
specifically acknowledged by the parties that any other available remedies are
inadequate.
7 Warranties & Disclaimers
7.1 Warranties. Each party warrants that it has the legal power to enter into this
Agreement. Kimble represents and warrants that (i) it will provide the Service in a
manner consistent with general industry standards reasonably applicable to the
provision thereof; and (ii) the functionality of the Service will not be materially
decreased during the Term. Customer represents and warrants that the collection
and processing of Customer Data by it and/or by Kimble as contemplated by this
Agreement complies in all respects with applicable data protection laws and
regulations.
7.2 Disclaimer. Except as expressly provided in the Agreement, Kimble makes no
warranties of any kind, whether express, implied, statutory or otherwise, and
specifically disclaims all implied warranties, including any warranties of
merchantability or fitness for a particular purpose, to the maximum extent permitted
by applicable law.
7.3 Internet Delays. The Service and/or Support Services may be subject to
limitations, delays, and other problems inherent in the use of the internet and
electronic communications. Kimble is not responsible for any delays, delivery
failures, or other damage resulting from such problems.
8 Mutual Indemnification
8.1 Indemnification by Kimble. Subject to clause 8.2 Kimble shall defend, indemnify
and hold Customer harmless against any Claims made or brought against Customer
by a third party alleging:
8.1.1 abreachbyKimbleofitsobligationsunderapplicabledataprotectionlawsandregulat
ions; and/or
8.1.2 that the use of the Service or the Support Services as contemplated hereunder
infringes the Intellectual Property Rights of a third party, provided that Customer:
(a) promptly gives written notice of the Claim to Kimble; (b) gives Kimble sole
control of the defence and settlement of the Claim (provided that Kimble may not
settle or defend any Claim unless it unconditionally releases Customer of all
liability); and (c) provides to Kimble, at Kimble’s cost, all reasonable assistance.
8.2 Limitation of Indemnification. Kimble shall have no liability under the
indemnity in clause 8.1.2 if the alleged infringement is based on: (i) a modification of
the Service or Support Services by any party other than Kimble or parties authorised
in writing by Kimble to make such modifications; (ii) use of the Service or Support
Services in combination with software, services or data not supplied or expressly
authorised in writing by Kimble; (iii) Customer's use of the Service or Support
Services in a manner contrary to the instructions given to Customer by Kimble or
otherwise in breach of this Agreement; and/or (iv) Customer's use of the Service or
Support Services after notice of the alleged or actual infringement from Kimble or
any appropriate authority.
8.3 At any point after the occurrence of a Claim that the use of the Service or the
Support Services as contemplated by this Agreement infringes the Intellectual
Property Rights of a third party or if Kimble reasonably believes that the Service or
the Support Services may infringe or misappropriate the Intellectual Property Rights
of a third party, Kimble may at its own option and expense: (a) replace or modify the
Service and/or Support Services (as applicable) so that they no longer infringe the
rights of any third party (provided that any such replacement or modification will not
materially affect the functionality of the Service or the scope of the Support Services);
or (b) procure for Customer the right to continue using the Service and/or Support
Services (as applicable) in the manner contemplated by this Agreement.
8.4 Indemnification by Customer. Subject to this Agreement, Customer shall defend,
indemnify and hold Kimble harmless against any loss, damage or costs (including
reasonable attorneys’ fees) incurred in connection with Claims made or brought
against Kimble by a third party alleging:
8.4.1 a breach by Customer of its obligations under applicable data protection laws
and regulations; and/or
8.4.2 that the Customer Data, or Customer’s use of the Service or Support Services
in violation of this Agreement, infringes the Intellectual Property Rights of, or has
otherwise harmed, a third party, provided that Kimble: (a) promptly gives written
notice of the Claim to Customer; (b) gives Customer sole control of the defence and
settlement of the Claim (provided that Customer may not settle or defend any Claim
unless it unconditionally releases Kimble of all liability); and (c) provides to
Customer, at Customer’s cost, all reasonable assistance.
9 Limitation of Liability
9.1 Limitation of Liability. Subject to clauses 9.2 to 9.7, in no event shall either party
and/or its licensors aggregate liability arising out of or related to this Agreement,
whether in contract, tort or under any other theory of liability, exceed the amounts
actually paid by and/or due from Customer under this Agreement in the twelve
months immediately preceding the incident giving rise to liability.
9.2 Exclusion of Consequential and Related Damages. Subject to clause 9.6, in no
event shall either party and/or its licensors be liable to anyone for any indirect,
punitive, special, exemplary, incidental, consequential or other damages of any type
or kind (or for any loss of Customer Data (except to the extent set out in clause 9.4),
revenue, profits, use or other economic advantage) arising out of, or in any way 
connected with the Service or Support Services, including but not limited to the use
or inability to use the Service or Support Services, or for any content obtained from
or through the Service or Support Services, any interruption, inaccuracy, error or
omission, however caused, whether in contract, tort or under any other theory of
liability, and whether or not the party has been advised of the possibility of such
damages.
9.3 Liability caused by incorrect Customer Data. Kimble shall not be liable for any
losses occasioned by incorrect or inaccurate Customer Data.
9.4 In the event of any loss or damage to Customer Data caused by Kimble or
Salesforce.com, the sole and exclusive remedy of Customer shall be for Kimble to use
reasonable commercial endeavours to restore the lost or damaged Customer Data
from the latest back-up of such Customer Data maintained by Kimble. However,
Kimble shall not be obliged to keep such back- ups and shall not be responsible for
any loss, destruction, alteration or disclosure of Customer Data beyond Kimble’s
obligation to restore lost or damaged Customer Data from the latest back- up of such
Customer Data as set out in this clause 9.4.
9.5 Estimations of savings. Any estimates given by Kimble of financial savings to be
derived from the Service are agreed to be estimations only and Kimble shall not be
liable to Customer if any such estimate is not achieved by Customer.
9.6 Liability not limited or excluded. Nothing in this Agreement limits or excludes
the liability of either party for: (a) death or personal injury resulting from its
negligence; (b) any damage or liability incurred as a result of the other party’s fraud
or fraudulent misrepresentation; or (c) any other liability which cannot be excluded
or limited by applicable law.
9.7 Subject to clause 9.2 and clause 9.6, Kimble’s maximum aggregate liability under
the indemnities in clause 8.1 is limited to £1,000,000.
10 Term and Termination
10.1 Term of Agreement. This Agreement commences on the Effective Date and
continues for the Initial Period and thereafter for Renewal Periods unless either
party gives the other party a minimum of 45 days’ written notice prior to the end of
the then-current Initial Period or Renewal Period or unless otherwise terminated in
accordance with this Agreement.
10.2 Subscription Term. Subject to clause 4.2 Subscriptions commence on the start
date specified in the relevant Order Form as ‘Subscription Start Date’, continue for
the term specified therein and automatically renew for each Renewal Period
(“Subscription Term”) unless either party gives the other notice of non-renewal at
least 45 days prior to the end of the then-current Initial Period or Renewal Period.
The renewal Fees will be equal to the then-current number of total User licences
multiplied by the Subscription Fee in effect during the prior term, unless Kimble has
given Customer at least 30 days prior written notice of a fee increase, which shall be
effective upon renewal or thereafter.
10.3 Termination for Cause. A party may terminate this Agreement for cause: (i)
upon 30 days’ written notice of a material breach to the other party if such breach
remains uncured at the expiration of such period; or (ii) if the other party 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 any event
analogous to the foregoing occurs in relation to that other party in any jurisdiction.
Any breach of Customer’s payment obligations or unauthorised use of Kimble
technology, the Service or the Support Services will be deemed a material breach of
this Agreement. Kimble, in its sole discretion, may terminate Customer’s account or
use of the Service or the Support Services if Customer breaches or otherwise fails to
comply with this Agreement. In addition, Kimble may terminate a free or trial
account at any time in its sole discretion. Customer agrees and acknowledges that
Kimble has no obligation to retain the Customer Data, and may delete such
Customer Data, if Customer has materially breached this Agreement, including but
not limited to failure to pay outstanding fees, and such breach has not been cured
within 30 days of notice of such breach. Upon any termination for cause by
Customer, Kimble shall refund Customer any prepaid fees covering the remainder of
the Term after the date of termination.
10.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to
pay any fees accrued or payable to Kimble prior to the effective date of termination.
10.5 Return of Customer Data. Upon request by Customer made within 30 days
before the effective date of termination ("Retention Period"), Kimble will make
available to Customer for download a file of Customer Data in comma separated
value (.csv) format along with attachments in their native format. After the Retention
Period, Kimble shall have no obligation to maintain or provide any Customer Data
and may destroy the Customer Data in accordance with Kimble’s document retention
and destruction policies.
10.6 Surviving Provisions. The following provisions shall survive any termination or
expiration of this Agreement: clauses 1, 2.2, 2.3, 3.6, 3.7, 4 to 10 inclusive and 13.
11 Force Majeure
Neither Kimble or Customer shall be liable in respect of any breach of this
Agreement due to any cause beyond its reasonable control (or, in the case of Kimble,
Salesforce.com’s reasonable control) including but not limited to Act of God,
inclement weather, flood, lightning, fire, industrial action, any act or omission of
government or any other competent authority, war, military operations, riot or the
act or omission of any party for whom Kimble or Customer (as appropriate) is not
responsible.
12 Insurance
Kimble certifies that it has taken out, from reputable insurance companies, insurance
policies providing adequate coverage in respect of its public and professional
liability. Upon request, it shall provide an insurance certificate to Customer.
13 General Provisions
13.1 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.
13.2 No Third-Party Beneficiaries. Except as stated in clause 2.2 no person who is
not a party to this Agreement is intended to benefit by its terms and no such person
has any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this Agreement but this does not affect any right or remedy of a third party
which exists or is available apart from that Act. Notwithstanding any rights any third
party may have under this Agreement, the parties may cancel or vary this Agreement
in accordance its terms without the consent of any third party.
13.3 Notices. All notices under this Agreement shall be in writing and shall be
deemed to have been given upon: (i) personal delivery; (ii) the second Business Day
after mailing; (iii) the second Business Day after sending by confirmed facsimile; or
(iv) the second Business Day after sending by email. Notices to Kimble shall be
addressed to the attention of the Company Secretary at the registered office. Notices
to Customer shall be addressed to Customer’s signatory of this Agreement unless
otherwise designated below.
13.4 Waiver and Cumulative Remedies. No failure or delay by either party in
exercising any right under this Agreement shall constitute a waiver of that right.
Other than as expressly stated herein, the remedies provided herein are in addition
to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the provision shall be modified by the court and
interpreted so as best to accomplish the objectives of the original provision to the
fullest extent permitted by law, and the remaining provisions of this Agreement shall
remain in effect.
13.6 Assignment. Neither party may assign any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior written consent of the
other party not to be unreasonably withheld). Any attempt by a party to assign its
rights or obligations under this Agreement in breach of this clause shall be void and
of no effect. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of the parties, their respective successors and permitted assigns.
13.7 Anti-Corruption. Customer has not received or been offered any illegal or
improper bribe, kickback, payment, gift, or thing of value from a Kimble employee or
agent in connection with this Agreement and shall comply with all applicable laws,
regulations and sanctions relating to anti- bribery and anti-corruption including
without limitation the Bribery Act 2010 (as such statute is amended from time to
time).
13.8 Governing Law. This Agreement shall be governed exclusively by, and
construed exclusively in accordance with, the Jurisdiction. The Jurisdiction shall
have exclusive jurisdiction to adjudicate any disputes, actions, claims or causes of
action arising out of or in connection with this Agreement, the Service or the Support
Services. Each party hereby consents to the jurisdiction of such courts.
13.9 Entire Agreement. This Agreement, including all Schedules and addenda hereto
and all Order Forms, constitutes the entire agreement between the parties, and
supersedes all prior and contemporaneous agreements, proposals or representations,
written or oral, concerning its subject matter. No modification, amendment, or
waiver of any provision of this Agreement shall be effective unless in writing and
signed by both parties. Notwithstanding any language to the contrary therein, no
terms or conditions stated in a Customer purchase order or in any other Customer
documentation (excluding Order Forms) shall be incorporated into or form any part
of this Agreement, and all such terms or conditions shall be null and void.
13.10 Counterparts. This Agreement may be executed by exchange of a facsimile
copy of the Agreement signed by the relevant party or by email exchange of a pdf
copy of the Agreement signed by the relevant party and in counterparts, which taken
together shall form one legal instrument.
SCHEDULE 1
Salesforce.com Service Agreement
Though the master subscription agreement is between Customer and Kimble, the
service is hosted by Saleforce.com. By agreeing to the terms in the master
subscription agreement you are accepting the Salesforce.com Platform terms of use
set out below.
This Saleforce.com Service Agreement is entered into and effective as of the
Subscription Start Effective Date defined in the signed order form (“Effective
Date”) by THE COMPANY OR OTHER LEGAL ENTITY (“You”), detailed in the
service order form.
“AppExchange” means the online directory of on-demand applications that work
with the Service, located at http://www.appexchange.com or at
any successor websites.
“Customer Data” means all electronic data or information submitted by You as and
to the extent it resides in the Platform or SFDC Service.
“Platform”
means the online, Web-based platform service provided by SFDC
to Reseller in connection with Reseller’s provision of the Reseller
Application to You.
“Reseller” means Kimble Applications Limited
“Reseller
Application”
means the online, Web-based application provided by Reseller to
You
“SFDC Service”
means the online, Web-based service generally made available to
the public via http://www.salesforce.com and/or other designated
websites, including associated offline components but excluding
Third-Party Applications. For purposes of this SFDC Service
Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com EMEA Limited.
“Third-Party
Applications”
means online, Web-based applications and offline software
products that are provided by third parties and are identified as
third-party applications, including but not limited to those listed
on the AppExchange and the Reseller Application.
“Users”
means Your employees, representatives, consultants, contractors
or agents who are authorised to use the Service subject to the
terms of this SFDC Service Agreement as a result of a
subscription to the Reseller Application having been purchased
for such User, and have been supplied user identifications and
passwords by You (or by Salesforce.com or Reseller at Your
request).
“You” and “Your”
means the customer entity which has contracted to purchase
subscriptions to use the Reseller Application subject to the
conditions of this SFDC Service Agreement, together with any
other terms required by Reseller.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use
the Platform via the Reseller Application, subject to the terms of this SFDC Service
Agreement, together with any other terms required by Reseller. User subscriptions
cannot be shared or used by more than one User (but may be reassigned from time to
time to new Users who are replacing former Users who have terminated employment
with You or otherwise changed job status or function and no longer require use of the
Platform). For clarity, Your subscription to use the Platform hereunder does not
include a subscription to use the SFDC Service generally or to use it in connection
with applications other than the Reseller Application. If You wish to use the SFDC
Service or any of its functionalities or services other than those included in the
Reseller Application, or to create or use additional custom objects beyond those
which appear in the Reseller Application in the form that it has been provided to You
by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such
services. In the event Your access to the Reseller Application provides You with
access to the SFDC Service generally or access to any Platform or SFDC Service
functionality within it that is in excess of the functionality described in the Reseller
Application’s user guide, and You have not separately subscribed under a written
contract with SFDC for such access, then You agree to not access or use such
functionality, and You agree that Your use of such functionality, or Your creation or
use of additional custom objects in the Reseller Application beyond that which
appears in the Reseller Application in the form that it has been provided to You by
your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile,
You understand that prior to purchasing Salesforce Mobile, You should refer to the 
Mobile Device list located at http://www.salesforce.com/mobile/devices/ for
information on mobile devices that are supported by SFDC. You agree that SFDC will
not provide any refunds, credits or other compensation or remedies in connection
with Your purchase of Salesforce Mobile for any mobile devices that are not
supported by SFDC. Third party mobile device, operating system and network
connectivity providers may, at any time, cease distribution of, interrupt, deinstall
and/or prevent use of Salesforce Mobile clients on supported mobile devices without
entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service
via the Reseller Application, Reseller is the sole provider of the Reseller Application
and You are entering into a contractual relationship solely with Reseller. In the event
that Reseller ceases operations or otherwise ceases or fails to provide the Reseller
Application, SFDC has no obligation to provide the Reseller Application or to refund
You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii)
are responsible for the content of all Customer Data; (iii) shall use commercially
reasonable efforts to prevent unauthorized access to, or use of, the Platform and the
SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized
use You become aware of; and (iv) shall comply with all applicable local, state,
federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business
purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign,
distribute, time share or otherwise commercially exploit or make the Platform or the
SFDC Service available to any third party, other than to Users or as otherwise
contemplated by this SFDC Service Agreement; (ii) send spam or otherwise
duplicative or unsolicited messages in violation of applicable laws; (iii) send or store
infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material,
including material that is harmful to children or violates third party privacy rights;
(iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or
malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the
integrity or performance of the Platform or the SFDC Service or the data contained
therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC
Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or
the SFDC Service; (ii) frame or mirror any content forming part of the Platform or
the SFDC Service, other than on Your own intranets or otherwise for Your own
internal business purposes; (iii) reverse engineer the Platform or the SFDC Service;
or (iv) access the Platform or the SFDC Service in order to (a) build a competitive
product or service, or (b) copy any ideas, features, functions or graphics of the
Platform or the SFDC Service.
2. Third-Party Providers. Reseller and other third-party providers, some of which
may be listed on pages within SFDC’s website and including providers of Third-Party
Applications, offer products and services related to the Platform, the SFDC Service,
and/or the Reseller Application, including implementation, customization and other
consulting services related to customers’ use of the Platform and/or the SFDC
Service, and applications (both offline and online) that interoperate with the 
Platform and/or the SFDC Service such as by exchanging data with the Platform
and/or the SFDC Service or by offering additional functionality within the user
interface of the Platform and/or the SFDC Service through use of the Platform
and/or SFDC Service's application programming interface. SFDC does not warrant
any such third- party providers or any of their products or services, including but not
limited to the Reseller Application or any other product or service of Reseller,
whether or not such products or services are designated by SFDC as “certified,”
“validated” or otherwise. Any exchange of data or other interaction between You and
a third-party provider, including but not limited to the Reseller Application, and any
purchase by You of any product or service offered by such third-party provider,
including but not limited to the Reseller Application, is solely between You and such
third-party provider. In addition, from time to time, certain additional functionality
(not defined as part of the Platform or SFDC Service) may be offered by SFDC or
Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to
terms specified by the licensor and agreed to by You in connection with a separate
purchase by You of such additional functionality. Your use of any such additional
functionality shall be governed by such terms, which shall prevail in the event of any
inconsistency with the terms of this SFDC Service Agreement.
3. Integration with Third-Party Applications. If You install or enable Third-Party
Applications for use with the Platform or SFDC Service, You acknowledge that SFDC
may allow providers of those Third-Party Applications to access Customer Data as
required for the interoperation of such Third Party Applications with the Platform or
SFDC Service. SFDC shall not be responsible for any disclosure, modification or
deletion of Customer Data resulting from any such access by Third-Party Application
providers. In addition, the Platform and SFDC Service may contain features designed
to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter
applications). To use such features, You may be required to obtain access to such
Third-Party Applications from their providers. If the provider of any such ThirdParty Application ceases to make the Third-Party Application available for
interoperation with the corresponding Platform or SFDC Service features on
reasonable terms, SFDC may cease providing such Platform or SFDC Service features
without entitling You to any refund, credit, or other compensation.
4. Access by Reseller. To the extent Reseller serves as the administrator of the
Reseller Application for You, You acknowledge that your use of the Reseller
Application may be monitored by Reseller and Reseller may access Customer Data
submitted to the SFDC Service or Reseller Application. By agreeing to this SFDC
Service Agreement, you are consenting to such monitoring and access by Reseller.
5. Processing of Customer Data. SFDC’s processing of Customer Data is limited to
the extent, and in such a manner as is necessary, for the performance of SFDC’s
obligations under its agreement with Reseller with regard to provisioning the
Platform in connection with the Reseller Application and shall not include processing
Customer Data for any other purpose without Your or Reseller’s written instruction
as appropriate. For clarity, the following processing is deemed an instruction by
Reseller and/or You: (a) processing necessary for the performance of SFDC’s
obligations under its agreement with Reseller with regard to provisioning the
Platform in connection with the Reseller Application; and (b) processing initiated by
Your Users in their use of the Reseller Application.
6. Return of Customer Data. You have thirty (30) days from the date of termination
your Reseller Application subscription term in which to request a copy of Customer
Data, which will be made available to You in a .csv format. Any modifications to such
Customer Data made by the Reseller Application outside of the Platform (if any) will
not be captured in Customer Data as returned and the return of any such modified
data shall be the responsibility of Reseller.
7. Proprietary Rights. Subject to the limited rights expressly granted hereunder,
SFDC reserves all rights, title and interest in and to the Platform and the SFDC
Service, including all related intellectual property rights. No rights are granted to You
hereunder other than as expressly set forth in this SFDC Service Agreement. The
Platform and the SFDC Service is deemed SFDC confidential information, and You
will not use it or disclose it to any third party except as permitted in this SFDC
Service Agreement.
8. Compelled Disclosure. If either You or SFDC is compelled by law to disclose
confidential information of the other party, it shall provide the other party with prior
notice of such compelled disclosure (to the extent legally permitted) and reasonable
assistance, at the other party’s cost, if the other party wishes to contest the
disclosure.
9 .Suggestions. You agree that SFDC shall have a royalty-free, worldwide,
transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into
any SFDC products or services any suggestions, enhancement requests,
recommendations or other feedback provided by You or Your Users relating to the
operation of the Platform and/or the SFDC Service.
10. Suspension and Termination. Your use of the Platform and the SFDC Service may
be immediately terminated and/or suspended upon notice due to (a) a breach of the
terms of this SFDC Service Agreement by You or any User, (b) the termination or
expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing
the Platform as part of the Reseller Application to You, and/or (c) a breach by
Reseller of its obligations to SFDC with respect to the subscriptions it is providing to
You in connection with this SFDC Service Agreement. If You use the Reseller
Application in combination with a SFDC Service Org other than the Org provisioned
solely for use with the Reseller Application (a “Shared org”) You acknowledge and
understand that (i) access to such Org, including the Reseller Application used in
connection with such Org, may be suspended due to Your non-payment to SFDC or
other breach of Your Agreement with SFDC, and (ii) in the event Your relationship
with SFDC is terminated as a result of non-payment or other material breach of Your
agreement with SFDC, Your Platform subscriptions would also be terminated. In no
case will any such termination or suspension give rise to any liability of SFDC to You
for a refund or other compensation.
11. Subscriptions Non-Cancelable. Subscriptions for the Platform are non-cancelable
during a subscription term, unless otherwise specified in Your agreement with
Reseller.
12. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING
BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC
SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, 
IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC
SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY,
SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
13. No Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO
EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY
DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT,
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES, OR DAMAGES BASED ON LOST PROFITS, COST OF PROCUREMENT
OF REPLACEMENT GOODS OR SERVICES, LOST BUSINESS, LOSS OF USE, LOSS
OF OR CORRUPTION OF DATA, HOWEVER CAUSED AND, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER
OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Further Contact. SFDC may contact You regarding new Platform and SFDC
Service features and offerings.
15. Third Party Beneficiary. SFDC shall be a third party beneficiary to the agreement
between You and Reseller associated with Your purchase of the Reseller Application
solely as it relates to this SFDC Service Agreement.
SCHEDULE 2
SUPPORT SERVICES
1. SUPPORT1.1 In accordance with clause 3.1 above, Kimble shall:1.1.1 provide
Support Services for System Failures concerning Customer’s use of the
Service, to Customer in a timely and professional manner and in accordance
with the Service Levels;1.1.2 provide general advice and guidance to Customer
on how to use functionality of the Service already enabled in Customer’s
Production environment. Such, “how-to” advice and guidance will not be
subject to any Service Levels;1.1.3 only provide Support Services based on
Incidents submitted by Customer into the Kimble Incident Management
System at http://support.kimbleapps.com;1.1.4 only provide Support Services
for the Supported Version of the Service. For Customers on earlier versions,
Kimble will use reasonable endeavours to resolve any issue raised by
Customer, but no new fixes or Minor Releases will be created for old versions
of the system;1.1.5 ask Customer Support Users to provide their company
name, contact information, along with key information about the Incident and
assign each Incident a unique Incident number; and1.1.6 promptly respond to
each Incident in accordance with the Service Levels and promptly resolve each
case.1.2 In order to provide Support Services Kimble may need access to
Customer’s Production environment. Customer grants Kimble access to its
Production environment to the extent required for Kimble to provide Support
Services to Customer.1.3 Actual resolution time will depend on the nature of
the case and the resolution. A resolution may consist of a fix, workaround or 
other solution in Kimble’s reasonable determination.1.4 Kimble’s support
consultants may contact Customer Support Users by telephone in order to
discuss the issue and potential remedies.1.5 Kimble shall only provide
Support Services for the Service and the Salesforce.com Platform where
provided by Kimble pursuant to an Order Form. For the avoidance of doubt,
Kimble will not provide Support Services for any services purchased by
Customer from Salesforce.com, or other third party products.
1.6 Kimble will only provide Support Services to Customer during Business
Hours.
2 EXCLUDED SUPPORT
2.1 Kimble shall not provide Support Services in respect of any of the following:
2.1.1 Resolution of any issues caused by modification of reference or configuration
data by Customer, through means other than those provided as part of the Service.
2.1.2 Assistance with any services or technologies not provided by Kimble, including
implementation, administration or use of third party enabling technologies such as
databases, computer networks or communications systems.
2.1.3 Assistance with installation or configuration of hardware, including computers,
hard drives, networks or printers.
2.1.4 Resolution of any incidents in a Sandbox environment, except in the
preparation of an organization for a deployment of a Major Release of the Service.
2.1.5 Support of any interfaces to any third party software, other than such third
party software interfaces agreed and documented in the Order Form and provided by
Kimble, or for components of an interface that reside within the Service.
2.1.6 Assistance with issues that are not reproducible on browsers that are in
compliance with the list provided by Salesforce.com (available here:
https://help.salesforce.com/apex/HTViewHelpDoc?id=getstart_browser_overview.
htm&language=en_US) (as updated from time to time) or on browsers or devices
which are not included in such list.
2.1.7 Access to the underlying data/object model (or any issues caused by such
access).
3 CUSTOMER OBLIGATIONS
3.1 Customer will shall make all reasonable efforts to investigate and diagnose an
Incident before raising an Incident with Kimble.
3.2 Customer must provide sufficient details about the Incident, in order for Kimble
to be able to reproduce errors in order to resolve them. Customer agrees to cooperate
and work closely with Kimble to reproduce errors, including conducting diagnostic
or troubleshooting activities as requested and appropriate. Subject to Customer’s 
systems security policies, Users may also be asked to provide remote access to their
User Account and/or desktop system for troubleshooting purposes.
3.3 Prior to requesting or receiving Support Services, Customer shall notify Kimble
in writing in advance of the contact details of no more than five (5) Users who are
authorised by Customer to notify Kimble of any Incident via the Kimble Incident
Management System (“Customer Support Users”).
3.4 Only Customer Support Users may raise Incidents with Kimble or communicate
with Kimble in respect of the status of Support Services provided or to be provided in
respect of any Incident.
3.5 Newly authorised Customer Support Users must undertake the training
programs defined during the support handover process and any additional training
as subsequently notified by Kimble from time to time. Kimble reserves the right to
refuse Support tickets from anyone who is not a Customer Support User or any
Customer Support User who has not undertaken the required training programs.
3.6 The Customer will be responsible for any regression testing of all Minor Releases
and Major Releases in a Sandbox environment prior to Kimble deploying any Minor
Release or Major Release in Customer’s Production environment.
3.7 It is recommended that Customer has a Full Copy Sandbox environment. Kimble
will use commercially reasonable endeavours to resolve tickets and carry out
upgrades for Customers who do not maintain a Sandbox environment, but Customer
acknowledges and accepts that not having a Sandbox environment materially
increases the risk of disruption
3.8 Any User making changes to the setup or configuration of Kimble must ensure
they have fully read and understood any applicable documentation, or consulted with
Kimble prior to making changes in Customer’s Production environment. Wherever
possible changes should be made and tested in a Sandbox environment first.
4 KNOWLEDGEBASE
Kimble will provide access to the Kimble Knowledgebase to all Customer Support
Users.
5 MINOR RELEASES
5.1 Kimble will deploy regular Minor Releases to all Customer organizations in order
to fix defects and known issues. These issues are either reported by Customer or
identified by Kimble during ongoing testing / quality assurance and monitoring.
5.2 Minor Release deployments may contain, Fixes to internal logic, e.g. rounding in
a calculation, improved error handling, e.g. a previously unhandled error is reported
with a more user-friendly message, Updates to help, e.g. to provide better coverage
or improve clarity and Improvements to usability of UI, e.g. clearer labels on a page,
changing the control used to select a value.
5.3 Minor Release deployments will NOT contain, modifications to database
definitions, validation rules, formula fields and exceptions in triggers are avoided
wherever possible, (e.g. a formula field would be not be extended to return a different
value, but may be amended if returning the incorrect value), changes to external web
service definitions, and changes to pages which affect functionality
5.4 Kimble will provide a 1-week period to review the contents of any Minor Release
in a Sandbox environment prior to deployment to Customer’s Production
environment. The deployment to Customer’s Production environment will be
postponed only where a change made in the Minor Release introduces significant
regression issues and such issues are notified to Kimble via the Kimble Incident
Management System prior to deployment of the Minor Release in Customer’s
Production environment.
5.5 Minor Releases will be deployed to Customer’s Sandbox environment the first
Sunday following the availability of the Minor Release, at 03:00 GMT.
5.6 Kimble will deploy Minor Releases to Customer’s Production environment the
second Sunday following the availability of a Minor Release, at 03:00 GMT.
5.7 The Kimble application will remain available to Users during the deployment of
Minor Releases. However, Kimble will endeavour to schedule deployment in
Customer's off-peak hours to minimise any potential impact on Users.
6 MAJOR RELEASES
6.1 An upgrade is a Major Release which may contain, modifications to database
definitions, validation rules, formula fields and exceptions in triggers are avoided
wherever possible, (e.g. a formula field would be not be extended to return a different
value, but may be amended if returning the incorrect value), changes to external web
service definitions, and changes to pages which affect functionality (“Upgrade”).
6.2 Kimble will Upgrade one Full Copy Sandbox environment and one Production
environment per Major Release. In the event that Customer maintains additional
Sandbox environments or requires repeat of a Sandbox upgrade Kimble reserves the
right to charge for such additional deployments of Major Releases.
6.3 Providing Customer has a Full Copy Sandbox, Kimble will provide at least a 4-
week period to review the contents of any Upgrade in the Sandbox environment prior
to deployment to the Customer’s Production environment. The deployment to the
Customer’s Production environment will be postponed only where a change made in
the Upgrade introduces significant regression issues and such issues are notified to
Kimble via the Kimble Incident Management System prior to deployment of the
Upgrade in the Customer’s Production environment.
6.4 Customer will be responsible for training Users on the new release features of
Major Releases.
6.5 Kimble will deploy Major Releases in Customer’s Production environment at a
mutually agreed time (usually over a weekend). This planned down-time will be
excluded from any Availability calculations
6.6 Kimble will notify Customer of any new Major Release through the Kimble
Customer support portal. Release notes will highlight the new features available in
any new Major Release.
6.7 Kimble will deploy Major Releases on a ‘like for like’ basis. This means that
optional new functionality in any Major Release requiring configuration will not be
configured by default. Support from Kimble to amend/reconfigure customisations,
interfaces or customised reports as a result of the deployment of a Major Release is
not included within the quoted Fees and if required by Customer would be separately
chargeable.
6.8 Any activities related to assessing/implementing new features would be carried
out using either available call-off time agreed by the Customer and Kimble or as a
separately chargeable service by Kimble pursuant to a separate professional services
agreement between Kimble and Customer.
7 SERVICE REQUESTS & CALL-OFF
7.1 In this paragraph 7 “Service Requests” means requests from Customer that are
not related to System Failures and may include the following types of activities:
7.1.1 Small configuration changes for additional functionality enabled as part of an
upgrade, or not originally implemented.
7.1.2 Developing custom reports / dashboards.
7.1.3 Creation of custom workflows/approvals.
7.1.4 Installation of 3rd party applications.
7.1.5 Custom development of Invoice / Credit Note Templates and formats.
7.1.6 Creation of new profiles / application roles.
7.1.7 Managing of menus and tabs.
7.1.8 Creation of desktop (outlook/gmail) integration configuration.
7.1.9 Creating new email templates.
7.1.10 Creating new Kimble products/propositions.
7.1.11 Configuring new functionality not currently used in Customer’s Production
environment.
7.1.12 Training on a particular area of functionality of the Service.
7.1.13 Amending/reconfiguration of customisations, interfaces or customised reports
as a result of an upgrade.
7.1.14 Assistance with solutions, services or technologies other than the Service,
including but not limited to implementation, installation, configuration,
administration or use of third- party enabling technologies and infrastructure such
as databases, computers, printers and networks or communications systems.
7.2 In order to perform activities relating to Service Requests, Kimble provides
Customers with the ability to pre-purchase call-off time, sold in units of hours.
7.3 Call-off time will be consumed in half-hour (30 minute) units.
7.4 Customer will be informed on a periodic basis of number of units used and the
balance of units remaining.
8 MAINTENANCE.
8.1 Scheduled Maintenance/Scheduled Down Time. Kimble will notify Customer by
email no less than five (5) Business Days before Scheduled Maintenance commences.
Kimble shall notify Customer by email in respect of any major maintenance activity
(e.g., data centre moves, Kimble version upgrades, connectivity changes) which
requires any change on Customer’s network or requires Customer support at least
ten (10) Business Days prior to the start of the work. Customer may not reject any
request for Scheduled Maintenance required by Salesforce.com and, in respect of any
other requests by Kimble for Scheduled Maintenance, Customer’s failure to reject a
request at least two (2) days prior to the applicable Scheduled Maintenance Window
shall be deemed acceptance thereof. Kimble will notify Customer via email or the
Kimble Incident Management System that the Scheduled Maintenance has been
completed as soon as reasonably practicable, or if Scheduled Maintenance is
postponed or cancelled. Kimble support staff will be available to join technical
bridges during Scheduled Maintenance as reasonably requested, coordinated and
initiated by Customer. Kimble will notify Customer of Scheduled Down Time, which
may only occur during the Scheduled Maintenance Window. Down Time shall not
include Scheduled Down Time except to the extent that Scheduled Down Time
exceeds two hundred forty (240) minutes in a calendar month, unless otherwise
agreed in advance.
8.2 Scheduled Maintenance Window. Kimble will use reasonable endeavours to
perform Scheduled Maintenance and Scheduled Down Time from Monday to Sunday
between the hours of 8:00pm and 1:00am in London. Customer may at times
request the Kimble close a maintenance window so that Customer can perform
maintenance. If Scheduled Maintenance must be performed outside of the Scheduled
Maintenance Window Kimble will inform Customer in writing no less than ten (10)
Business Days before the work is carried out and shall use all reasonable endeavours
to limit the impact of such maintenance on the Service.
8.3 Emergency Maintenance. Should Kimble be required to conduct any Emergency
Maintenance, Kimble will contact Customer immediately by email or via the Kimble
Incident Management System. Any Down Time resulting from Emergency 
Maintenance shall be included as Down Time in the Availability calculation and
reports.
9 ORGANIZATION MONITORING
Kimble will install the Kimble Agent into a Customer’s Production environment for
the purposes of monitoring the health of a Customer’s Production environment.
EXHIBIT A – SERVICE LEVEL AGREEMENT
1. Service Level Agreement. This SLA sets out the Service Levels applicable to
the Support Service Level.
2. Performance Requirements.a. Monthly Availability. Kimble will use
commercially reasonable endeavours to ensure that the Service maintains a
monthly Availability of 99.85%.b. Incident Response Times. The Service
Levels set out in the tables below shall apply, based on the Support Service
Level, in respect of Incidents in Customer’s Production environment notified
by Customer to Kimble via the Kimble Incident Management System, with the
severity levels referred to being determined in accordance with the Definitions
Table below:Support Service Level - Standard
Severity
Level
Kimble Initial
Response Due
Frequency of
Online Updates by
Kimble to
Customer on
Open Incidents
Kimble Target Fix Times
Severity 1
4 Business Hours
from
Incident Notification
The more frequent
of: (i) every 4
Business Hours
(after initial
Kimble response)
or (ii) in
accordance with an
Established Target
Kimble shall:
(i) use reasonable efforts to
restore the Service to a state
that allows Customer to
continue to use the functions
of the Service in all material
respects within 8 Business
Hours after the Kimble
Initial Response Due time
has elapsed; and
(ii) use reasonable efforts to
fully restore all functionality
to the Service to full
restoration within 24
Business Hours after the
Kimble Initial Response
Due time has elapsed.
Severity
Level
Kimble Initial
Response Due
Frequency of
Online Updates by
Kimble to
Customer on
Open Incidents
Kimble Target Fix Times
Severity 2
12 Business Hours
from
Incident Notification
Every 16 Business
Hours after initial
Kimble response
To be agreed by the parties
on a case by case basis
Severity 3
18 Business Hours
from
Incident Notification
Every 36 Business
Hours after initial
Kimble response
To be agreed by the parties
on a case by case basis
Severity 4
24 Business Hours
from
Incident Notification
Every 48 Business
Hours after initial
Kimble response
To be agreed by the parties
on a case by case basis
Support Service Level - Enhanced
Severity
Level
Kimble Initial
Response Due
Frequency of Online
Updates by Kimble to
Customer on Open
Incidents
Kimble Target Fix Times
Severity
1
2 Business
Hours from
Incident
Notification
The more frequent of: (i)
every 2 Business Hours
(after initial Kimble
response) or (ii) in
accordance with an
Established Target
Kimble shall:
(i) use reasonable efforts to restore the
Service to a state that allows Customer
to continue to use the functions of the
Service in all material respects within 8
Business Hours after the Kimble Initial
Response Due time has elapsed; and
(ii) use reasonable efforts to fully
restore all functionality to the Service
to full restoration within 24 Business
Hours after the Kimble Initial Response
Due time has elapsed.
Severity
2
8 Business
Hours from
Incident
Notification
Every 12 Business Hours
after initial Kimble
response
To be agreed by the parties on a case
by case basis
Severity
3
16 Business
Hours from
Incident
Notification
Every 24 Business Hours
after initial Kimble
response
To be agreed by the parties on a case
by case basis
Severity
4
18 Business
Hours from
Incident
Notification
Every 36 Business Hours
after initial Kimble
response
To be agreed by the parties on a case
by case basis
Severity Level Definitions Table
Severity
Level Impact on Customer’s Business
Severity 1
(Urgent)
The Service is not available at all or is working at a severely degraded
capacity/performance for multiple Users.
OR
A security breach relating to the Service has occurred.
OR
The Incident has a major business impact where a business process is
incapable of functioning, with a financial impact exceeding £10,000 and no
available bypass or workaround exists.
Severity 2
(High)
Service functionality has become limited or is working at marginally
degraded capacity or performance for multiple Users;
AND
No reasonably acceptable bypass or workaround exists.
Severity 3
(Normal)
A single User is unable to use the Service or a component of the Service that
is necessary for that User to perform his/her primary work activities.
OR
The Service has encountered a non-critical issue with minimal loss of
functionality or is working at minimally degraded capacity or performance.
OR
The Service or a component of the Service is unavailable where an alternative
system can be readily used.
Severity 4
(Low) Minor issue impacting non-critical functionality for a single User