NC Squared US EULA

NC SQUARED, INC
END USER LICENSE AGREEMENT‍

Please read this End User License Agreement (“EULA”) carefully. IT IMPOSES BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS. By clicking to accept or by signing this EULA and downloading and/or using all or any part of the Software, you (“Customer”) indicate your acceptance of the following terms from NC Squared, Inc., 2810 N Church St PMB 74040, Wilmington, DE, 19802-4447, a Delaware Corporation (“NC Squared”). The Customer agrees to be bound by all the terms and conditions of this EULA. The Customer agrees that it is enforceable as if it were a written negotiated agreement signed by the Customer. If the Customer does not agree to the terms of this EULA, the Customer must not download and/or use the Software. If you are entering into this EULA on behalf of a company or other legal entity, you hereby represent that you have the authority to bind such entity to this EULA, in which case the term “Customer” shall be construed to refer to such entity. The Customer is advised to print and keep a copy of this EULA for future reference.

NOW IT IS HEREBY AGREED AS FOLLOWS:

1. DEFINITIONS

“Booking Engine” means the object code form of NC Squared’s Booking Engine software, including any Updates and Upgrades applied to that software from time to time;

“Confidential Information” means, in respect of a party to this EULA, any information disclosed by that party to the other party during the term of the EULA that at the time of disclosure: (a) was marked as "confidential"; (b) was described by that party as “confidential”; or (c) should have been understood by the other party to be confidential; and, in the respect of the Customer, this shall include all Customer Personal Data;

“Customer Affiliates” means any parent or holding companies and any subsidiaries of the Customer, and any subsidiaries of any parent or holding companies of the Customer;

“Customer Personal Data” means any Personal Data that is Processed by NC Squared on behalf of the Customer in relation to this EULA;

“Data Protection Laws” means, with respect to each party, the following laws, insofar as applicable to such party’s activities under this EULA: (a) the EU General Data Protection Regulation (Regulation (EU) 2016/679) (“EU GDPR”); (b) the EU GDPR as transposed into UK law (including by the Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019) (“UK GDPR”); (c) the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020), Cal. Civil Code § 1798.100 et seq.(“CPRA”); (d) all other data protection and privacy laws applicable to such party in its role in the Processing of Personal Data under this EULA; and (e) any accompanying legally binding regulations that are promulgated to address provisions in any of the foregoing, in each case, as such laws and regulations may be updated, amended and superseded from time to time;

“Distribution Engine” means the object code form of NC Squared’s Distribution Engine software, including any Updates and Upgrades applied to that software from time to time;

“Documentation” means the electronic user manual for the Software that is either supplied to the Customer with the Software or made available to the Customer on the Salesforce Platform;

“Early Access” means access to any program, feature, functionality, module and/or service of the Software that is made available by NC Squared on an early access basis, including all access that is specified by NC Squared as early, preview, alpha or beta access;

“Effective Date” means the date on which the Customer clicks to accept or signs this EULA or first downloads and/or uses all or any part of the Software, whichever is first;

“Fees” means the Subscription Fees and/or Support Fees;

“Indemnity Event” means any infringement of any third party’s intellectual property rights arising out of the use of the Software by the Customer in accordance with the terms of this EULA;

“Integrated Services” means: (a) with respect to Booking Engine, meeting platforms and calendar services provided by Salesforce, Zoom Video Communications, Inc, Google, Inc and Microsoft Corporation Calendar; and (b) any cloud or other software-based services provided by any third party (other than Salesforce) that are or may be integrated with the Software by NC Squared from time to time in circumstances where the Customer or a User must, in order to activate the integration, have an account with the relevant services provider or obtain activation or access credentials from the relevant services provider;

“Minimum Requirements” means the minimum technical specification required to enable the Software to function in accordance with the Documentation and/or at all, as set out in the Documentation and/or on the Salesforce Platform;

“Minimum Term” means any minimum period or minimum term for the EULA specified in the Quotation or otherwise agreed between the parties;

“NC Squared UK Affiliate” means NC Squared Limited, 1 Stanyards Courtyard, Stanyards Farm, Chertsey Road, Chobham, Surrey, England, GU24 8JE;

“NC Squared Website” means the website at https://nc-squared.com and any successor website designated by NC Squared from time to time;

“Personal Data” means any information or data: (a) relating to an identified or identifiable natural person; (b) identifying, relating to, describing, or reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular individual or household; or (c) otherwise defined as “personal data” or “personal information” under the Data Protection Laws;

“Process” and variations thereof, means: (a) any operation or set of operations performed upon Personal Data, whether or not by automatic means or (b) as otherwise defined under the Data Protection Laws;

“Quotation” means the quotation issued by NC Squared to the Customer with respect to the Software (or, where there is no quotation, the invoice issued by NC Squared to the Customer with respect to the Software);

“Salesforce” means the Salesforce Inc group entity that contracts to provide the Salesforce Platform to the Customer;

“Salesforce Platform” means the CRM system provided by Salesforce and available via www.salesforce.com or any such unique resource locator as designated by Salesforce;

“Software” means Distribution Engine or Booking Engine, as selected by the Customer during the order process on the Salesforce Platform’s App Exchange;

“Subscription Period” means either: (a) a trial period; or (b) a period of 12, 24 or 36 months (as specified in the Quotation) in respect of which the Customer has paid the Subscription Fees or has committed to pay the Subscription Fees, or such other period as the parties have expressly agreed in writing;

“Subscription Fees” means the subscription fees payable to NC Squared in respect of the Software, details of which are specified in the Quotation (or, to the extent not in the Quotation, on the NC Squared Website);

“Subscription Tier” means one of the packages of Software functionality and corresponding Fees, defined by NC Squared and detailed on the NC Squared Website, as such packages are updated by NC Squared from time to time;

“Support Fees” means support fees payable to NC Squared in respect of support services provided in relation to the Software, details of which are specified in the Quotation (or, if not in the Quotation, on the NC Squared Website);

“Update” means any security patch or minor version update to the Software issued by NC Squared;

“Upgrade” means any major version upgrade to the Software issued by NC Squared;

“User” means each individual user who has access to and use of the Software made available to the Customer under this EULA, including: (a) with respect to Distribution Engine, any person who can be assigned object records by means of the Software, whether or not that person has an account in respect of the Software; and (b) with respect to Booking Engine, any meeting host or organizer and any administrative user of the Software; and

“Working Hours” means 9.00am to 5.00pm in New York (Eastern Time Zone).

2. GRANT OF RIGHTS; RESTRICTIONS

2.1 Subject to all the terms and conditions of this EULA and in consideration for the payment of the Subscription Fees, NC Squared hereby grants the Customer and the Customer Affiliates a worldwide, non-exclusive, non-transferable license during the term of this EULA to use and to permit Users to use the Software on the Salesforce Platform in accordance with the Documentation. Such use shall be for the Customer’s and the Customer Affiliates’ business purposes only. The Software functionality available to the Customer may be limited by the Customer’s Subscription Tier. The license is terminable in accordance with the express provisions of this EULA.

2.2 Except as expressly permitted in this EULA or required under applicable law, the Customer shall not, and shall not permit others to: (a) modify, translate, create derivative copies of or copy the Software, in whole or in part; (b) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; (c) distribute, sub-license, assign, share, time-share, sell, rent, lease, grant a security interest in, use for service bureau purposes, or transfer the Software or Customer’s right to use the Software; (d) remove or modify any copyright, trademark, or other proprietary notices of NC Squared contained within the Software; (e) use the Software in any manner not expressly authorized by this EULA; or (f) export object records from the Software in whole or part, whether for use with third party software or for some other use.

2.3 The Customer must ensure that all Users and Customer Affiliates comply with the terms of this EULA, and that the number of Users does not exceed the number of licensed Users. If the Customer wishes to increase the number of licensed Users, the Customer must submit a written request to do so to NC Squared. NC Squared shall only be entitled to reject such requests if it has reasonable grounds to do so and provides details of those grounds to the Customer. If NC Squared accepts the Customer’s request under this clause 2.3, the Customer shall pay the applicable Fees. The Customer may decrease the number of licensed Users at the end of a Subscription Period by giving to NC Squared at least 30 days' prior written notice of the decrease. Notwithstanding the foregoing, the Customer must have at all times during the term of this EULA at least 5 User licenses for the Software.

2.4 NC Squared has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This EULA conveys a limited license to use the Software pursuant to this clause 2 and shall not be construed to convey title to or ownership of the Software to the Customer or any other person. All rights in and to the Software not expressly granted herein are reserved by NC Squared.

2.5 This clause 2.5 applies to all Early Access use of the Software by or on behalf of the Customer, whether or not Fees apply in relation to such Early Access, and takes precedence over the provisions of this EULA: (a) the provision of any Early Access shall be at the sole discretion of NC Squared; (b) Early Access software and services may not be fully functional and are liable to be interrupted and to contain material bugs and errors; (c) NC Squared does not undertake to provide any support and other ancillary services in relation to Early Access features, although NC Squared may in practice do so; (d) NC Squared disclaims all implied warranties and representations in relation to Early Access, gives no express warranties and makes no express representations in relation to Early Access; and (e) NC Squared may suspend or terminate Early Access at any time at its sole discretion.

3. SALESFORCE; INTEGRATED SERVICES

3.1 The Customer represents, warrants, and covenants that it has the right to use: (a) the Salesforce Platform; and (b) any Integrated Services and other third-party software that the Customer uses from time to time in conjunction with the Software.

3.2 The supply of the Salesforce Platform and Integrated Services shall be under separate contracts and/or arrangements between the Customer or a User and the relevant third party. NC Squared does not contract to supply the Salesforce Platform or the Integrated Services and is not a party to any contract for, or otherwise responsible in respect of, the provision of the Salesforce Platform or any Integrated Services.

3.3 The Customer acknowledges and agrees that: (a) the use of Integrated Services may result in the transfer of Customer Personal Data from the Software to the relevant Integrated Services and vice versa and (b) NC Squared has no control over, or responsibility for, any disclosure, modification, deletion or other Processing of Customer Personal Data by any provider of Integrated Services..

4. SUPPORT SERVICES, UPDATES AND UPGRADES

4.1 NC Squared will make available to the Customer an email-based helpdesk facility for the purposes of: (a) assisting the Customer with the configuration of the Software and the integration of the Software with the Salesforce Platform; (b) assisting the Customer with the proper use of the Software; and/or (c) determining the causes of errors and fixing errors in the Software. NC Squared shall use reasonable endeavors to respond to issues raised through the helpdesk within 16 Working Hours.

4.2 NC Squared shall have no obligation to provide support in respect of any fault or error caused by the improper use of the Software or the use of the Software otherwise than in accordance with the Documentation.

4.3 If the Customer purchases a premier support package from NC Squared, then: (a) the Customer shall be entitled to the premier support features specified on the NC Squared Website from time to time; (b) the helpdesk referred to in clause 4.1 shall be accessible via email and telephone; (c) NC Squared shall use reasonable endeavors to respond to issues raised through the helpdesk within 4 Working Hours; and (d) the Customer shall pay Support Fees to NC Squared.

4.4 If NC Squared and/or its UK Affiliate’s personnel spend, during any 12-month period beginning on the Effective Date or any anniversary of the Effective Date, more than 100 hours providing support services to the Customer and/or the Customer Affiliates (excluding time spent providing support services in relation to bugs in the Software) under this EULA, then NC Squared shall notify the Customer of this and, following the sending of such notice, may charge the Customer for any additional support services (excluding support services in relation to bugs in the Software) provided during that period at its then-current standard time-based charging rates.

4.5 From time to time, NC Squared may release Updates and Upgrades through the Salesforce Platform’s App Exchange.

4.6 NC Squared shall make available to the Customer summary details of each Update; and NC Squared shall send to the Customer a written notice with details of each Upgrade, requesting that the Customer apply the Upgrade to the Software.

4.7 The Customer hereby consents to the application of Updates to the Software by NC Squared from time to time.

4.8 The Customer shall be responsible for applying each Upgrade to the Software within the period of 30 days following the issue of NC Squared’s applicable notice under clause 4.6.

4.9 If the Customer has not applied an Upgrade to the Software in accordance with clause 4.8: (a) the Customer acknowledges that NC Squared will no longer apply Updates (including security Updates) to the Software until such time as the Customer applies all released Upgrades; (b) subject to clause 8.1, NC Squared shall not be liable for any loss or damage suffered by the Customer and arising out of the failure of the Customer to apply an Upgrade in accordance with clause 4.8 (including loss or damage arising out of any security issues that would have been resolved by the application of the Upgrade, or by NC Squared applying an Update following the application of the Upgrade); and (c) NC Squared shall be entitled to refuse to provide support services to the Customer, until such time as the Customer applies all released Upgrades.

4.10 The Customer acknowledges that Updates and Upgrades may result in changes to the appearance and/or functionality of the Software, and that changes to Subscription Tier specifications may affect the Software functionality that is available to the Customer.

4.11 The Customer acknowledges that NC Squared will not be responsible for making back-ups of any Customer data.

5. FEES

5.1 In consideration for the license granted to the Customer hereunder, the Customer shall pay NC Squared the Subscription Fees; and in consideration for the provision of a premier support package, the Customer shall pay NC Squared the Support Fees; in each case the Fees must be paid using the methods of payment specified on the NC Squared website.

5.2 The first annual Fees payment shall be due and payable on the later of the Effective Date and the first day following the end of any trial period under clause 5.9; and subsequent annual Fees payments shall be due and payable on each anniversary of the first payment date.

5.3 This clause 5.3 applies in place of clause 5.2 if NC Squared has expressly agreed to a charging period that is not annual. If this clause 5.3 applies: (a) the Fees with respect to the first charging period shall be due and payable on the later of the Effective Date and the first day following the end of any trial period under clause 5.9; and (b) the Fees with respect to each subsequent charging period shall be due and payable on the first day of the relevant charging period.

5.4 All Fees and other amounts stated in and in relation to this EULA are stated exclusive of VAT and all other sales taxes, which may be payable by the Customer to NC Squared in addition to the principal amount.

5.5 NC Squared reserves the right to vary the Subscription Fees and/or Support Fees (including changes to Subscription Tier pricing) at and from the end of a Subscription Period and after the end of any Minimum Term by giving at least 45 days’ prior written notice of the variation to the Customer. If the Subscription Fees are varied and the Support Fees are specified by reference to the Subscription Fees, then the Support Fees shall automatically be varied along with the Subscription Fees.

5.6 This clause 5.6 applies where NC Squared offers different Subscription Tiers for the Software. Where this clause 5.6 applies: (a) if the Customer wishes to upgrade from a lower Subscription Tier to a higher Subscription Tier, the Customer must send to NC Squared a written upgrade request, which NC Squared may accept or reject at its sole discretion; if NC Squared accepts the request, NC Squared shall notify the Customer, and the Customer must pay the Subscription Fees for the higher Subscription Tier from the date of the upgrade; (b) if the Customer wishes to downgrade from a higher Subscription Tier to a lower Subscription Tier, the Customer must send to NC Squared a written downgrade request, in which case the downgrade will only take effect at the end of a Subscription Period and after the end of any Minimum Term.

5.7 If the Customer fails to make payment of the Fees or any other amount due under this EULA by the due date, then NC Squared may send a written demand for payment to the Customer. If the outstanding amount or amounts are not paid within 14 days following the date of issue of the written demand, then NC Squared may at any time thereafter by further written notice to the Customer suspend and/or terminate: (a) any or all of the licenses granted in and/or services provided under this EULA; and/or (b) this EULA.

5.8 If the parties have agreed a Minimum Term, then if this EULA is terminated by NC Squared under clause 5.7, 11.1 or 11.2, the Customer shall immediately become liable to pay all Fees and other amounts that would have been payable had this EULA continued to the end of the Minimum Term.

5.9 The first 30 days of the term of this EULA (or such other period as the parties may agree in writing) shall be a trial period, and all of the provisions of this EULA shall apply during that trial period, save as follows: (a) the Customer shall have no obligation to pay the Subscription Fees in respect of the trial period; (b) either party may terminate this EULA immediately by giving written notice to the other party at any time before the end of the trial period (in which case no liability to pay the Subscription Fees will arise); (c) the Customer may switch between any available Subscription Tiers during the trial period; and (d) the Software and the Customer’s use of the Software shall be subject to such limitations and restrictions as NC Squared shall implement from time to time.

6. WARRANTIES

6.1 NC Squared warrants to the Customer that: (a) it has the full power and authority to enter into this EULA; (b) it has the right to provide the Software to the Customer in accordance with this EULA; (c) it will use reasonable care and skill to ensure that the Software will function materially in accordance with the Documentation during the term of this EULA, without prejudice to NC Squared’s rights to update, enhance and upgrade the Software from time to time; and (d) the Software will not contain any virus, Trojan horse, worm, trapdoor, backdoor or other malicious code.

6.2 The above warranty is conditional upon the Customer complying with the Minimum Requirements.

6.3 The warranties set forth in this clause 6 are exclusive and in lieu of all other warranties provided by NC Squared, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from a course of dealing, a course of performance, or use of trade, all of which are hereby excluded and disclaimed by NC Squared.

6.4 The Customer shall procure its own internet connection to access the Salesforce Platform and/or the Software.

6.5 The Customer acknowledges that NC Squared relies on third party services providers to make the Software available to the Customer. Consequently, NC Squared does not warrant that the Customer shall have uninterrupted access to the Salesforce Platform and/or use of the Software.

6.6 NC Squared gives no guarantees, warranties or representations in respect of any Integrated Services or the Salesforce Platform.

6.7 The Customer acknowledges that the Software is an application on the Salesforce Platform and that NC Squared has no control over changes to the Salesforce Platform. NC Squared shall ensure that the Software is compatible with the Salesforce Platform on the Effective Date and NC Squared shall use reasonable endeavors to ensure that the Software remains compatible with the Salesforce Platform during the term of this EULA.

6.8 The Customer shall: (a) comply with the Minimum Requirements; (b) comply with all applicable local and foreign laws and regulations which may govern the use of the Software; (c) use the Software only for lawful purposes and in accordance with this EULA; and (d) comply with the applicable terms and conditions for use of the Salesforce Platform and the Integrated Services, including without limitation the Customer’s agreement with Salesforce, incorporating the Acceptable Use and External Facing Services Policy and the Artificial Intelligence Acceptable Use Policy, both of which are available at https://www.salesforce.com/company/legal/agreements/.

7. INDEMNITY

7.1 Subject to clause 7.3, NC Squared hereby indemnifies the Customer and undertakes to keep the Customer indemnified in full and on demand against any and all losses, liabilities, damages, claims, costs and expenses (including but not limited to legal costs and amounts paid in settlement of legal claims) (“Damages”) suffered or incurred by the Customer and arising as a result of an Indemnity Event.

7.2 Subject to clause 7.3, the Customer hereby indemnifies NC Squared and undertakes to keep NC Squared indemnified in full and on demand against any and all Damages suffered or incurred by NC Squared and arising as a result of the Customer’s breach of clause 10.2 or clause 10.12 (a “Privacy Breach Event”).

7.3 The indemnified party must: (a) upon becoming aware of an actual or potential Indemnity Event or Privacy Breach Event, as applicable, notify the other party; (b) provide to the other party all reasonable assistance in relation to the Indemnity Event or Privacy Breach Event; (c) allow the other party the exclusive conduct of all disputes, proceedings, negotiations and settlements relating to the Indemnity Event or Privacy Breach Event, provided that the other party will not agree to any settlement that imposes any liability or requires any admission of responsibility on the part of the indemnified party without the indemnified party’s prior written consent; and (d) not admit liability in connection with the Indemnity Event or Privacy Breach Event or settle the Indemnity Event or Privacy Breach Event without the prior written consent of the indemnified party.

7.4 The indemnities in clause 7.1 and clause 7.2 are not subject to the limitations and exclusions of liability in clause 8, except that the indemnity in clause 7.1 is subject to the liability cap in clause 8.11.

8. LIMITATION OF LIABILITY; INSURANCE

8.1 Nothing in this EULA will: (a) limit or exclude the liability of a party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party; (c) limit any liability of a party in any way that is not permitted under applicable law; or (d) exclude any liability of a party that may not be excluded under applicable law.

8.2 The limitations and exclusions of liability set out in this clause 8 and elsewhere in this EULA: (a) are all subject to clause 8.1; and (b) govern all liabilities arising under this EULA or in relation to the subject matter of this EULA, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise and providing that the limitations and exclusions shall not affect the Customer's obligations to pay the Fees.

8.3 Neither party will be liable to the other party in respect of any loss of profits, income, revenue, use, production or anticipated savings.

8.4 Neither party will be liable to the other party for any loss of business, contracts or commercial opportunities.

8.5 Neither party will be liable to the other party for any loss of or damage to goodwill or reputation.

8.6 Neither party will be liable to the other party in respect of any loss or corruption of any data, database or software.

8.7 Neither party will be liable to the other party in respect of any special, indirect, exemplary, punitive, or consequential loss or damage.

8.8 Neither party will be liable to the other party for any losses arising out of any event or events beyond the reasonable control of the parties.

8.9 Neither party will be liable to the other party for any wasted management time or procurement of substitute products or services.

8.10 Each party’s aggregated liability to the other party under or in connection with this EULA in relation to any event or series of related events shall not exceed the greater of: (a) $25,000; and (b) the sum of all amounts paid and payable by the Customer to NC Squared under this EULA during the period of 12 months immediately prior to the commencement of the event or series of events.

8.11 Each party’s aggregated liability to the other party under or in connection with this EULA shall not in any event exceed $2,500,000.

8.12 Under no circumstances shall NC Squared be liable for any failure of the Software to perform in accordance with the Documentation, or at all, as a result of a failure by the Customer to comply with the Minimum Requirements.

8.13 Subject to NC Squared’s compliance with clause 6.7, NC Squared shall not be liable to the Customer in respect of any loss or damage arising out of any failure of the Software to integrate or be compatible with the Salesforce Platform.

8.14 NC Squared shall not be liable to the Customer in respect of any loss or damage arising out of any failure of the Software to integrate or be compatible with any third-party software (excluding the Salesforce Platform).

8.15 NC Squared shall not be liable to the Customer in respect of any loss or damage that may be caused by Integrated Services or any provider of Integrated Services.

8.16 The allocations of liability in this clause 8 represent the agreed and bargained-for understanding of the parties and voluntary allocation between them of the risk associated with Customer’s use of the Software and, but for this provision, NC Squared would not have made the Software available to Customer hereunder. NC Squared’s compensation reflects such allocations, and the limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy contained herein.

8.17 NC Squared shall maintain, during the term of this EULA and for a period of at least 12 months thereafter, reasonable insurance with respect to NC Squared’s obligations under this EULA. NC Squared shall maintain the following minimum coverages: (a) employer’s liability insurance of $1,000,000 in aggregate; (b) public liability insurance of $1,000,000 per occurrence; and (c) professional indemnity insurance of $2,500,000 in aggregate. Promptly following receipt from the Customer of a written request to do so, NC Squared shall provide to the Customer certificates of insurance with respect to the insurance policies required under this clause 8.16.

9. CONFIDENTIALITY

9.1 Each party shall: (a) keep confidential and not disclose the Confidential Information of the other party to any person save as expressly permitted by this clause 9; and (b) protect the Confidential Information of the other party against unauthorized disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

9.2 The Confidential Information of a party may be disclosed by the other party to that other party's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing or by a professional obligation to maintain the confidentiality of the Confidential Information disclosed.

9.3 The obligations set out in this clause 9 shall not apply to: (a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence); (b) Confidential Information of a party that is in possession of the other party prior to disclosure by the first party; (c) Confidential Information of a party that is received by the other party from an independent third party who has a right to disclose the relevant Confidential Information.

9.4 The obligations set out in this clause 9 shall not apply to the extent that Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the party subject to such disclosure requirement must, where permitted by law, give to the other party prompt written notice of the disclosure requirement.

9.5 The limitations and exclusions of liability in clause 8 shall not apply in respect of any breach of this clause 9, except that clause 8.11 shall apply in respect of any such breach.

10. DATA PROTECTION

10.1 Occasionally, Customer Personal Data may be processed by NC Squared and/or the NC Squared UK Affiliate, the nature, purpose, and details of which are further described in Appendix 1. In such event, the collection, storage and/or processing of Personal Data may render the laws of several different jurisdictions applicable. NC Squared and/or the NC Squared UK Affiliate shall comply with the Data Protection Laws. The following provisions of this clause 10 are applicable only to the extent that they are required by the Data Protection Laws: clauses 10.3 to 10.5, 10.7 to 10.13 and 10.15, 10.16, and 10.21. With respect to the application of the Data Protection Laws, terms not defined in this EULA shall have the meanings set forth in the applicable Data Protection Law and, if there is a conflict between the definition of a term in this EULA and the definition in the applicable Data Protection Law, the definition in the applicable Data Protection Law shall apply.

10.2 The Customer represents, warrants, and covenants to NC Squared that (a) it has the legal right to disclose all Personal Data that it discloses to NC Squared under or in connection with this EULA; (b) it has (i) disclosed to all individuals whose Personal Data is disclosed hereunder all processing notices and privacy policies required under the Data Protection Laws and (ii) has obtained from such individuals all consents required under Data Protection Laws; (c) the Customer’s disclosures and the consents described in clause (b) comply with the Data Protection Laws; (d) the Customer has all rights, permissions, and consents required under the Data Protection Laws and any agreements between the Customer and any third party for the Processing of such Personal Data by NC Squared in accordance with this EULA; (e) it has in place the necessary contractual safeguards to ensure that the transfer of Customer Personal Data to, and Processing of Customer Personal Data by, a provider of Integrated Services is lawful; and (f) the transfer of Customer Data to a provider of Integrated Services does not infringe any person's Intellectual Property Rights or other legal rights and will not put NC Squared in breach of any applicable laws.

10.3 The nature and purpose of NC Squared’s processing of Customer Personal Data shall be limited to the direct business relationship between NC Squared and Customer, wherein the Customer shall only supply to NC Squared, and NC Squared shall only Process, in each case under or in relation to this EULA, the Personal Data specified in Appendix 1. NC Squared shall only process the Customer Personal Data for the purposes specified in Appendix 1 or as otherwise permitted by the Data Protection Laws. To the extent CPRA is applicable: (a) NC Squared shall not, directly or indirectly, “sell” or “share” (as such terms are defined in the CPRA), any Customer Personal Data to or with any third party; and (b) unless permitted by the CPRA, NC Squared will refrain from: (i) retaining, using, or disclosing Customer Personal Data — including in anonymized or aggregated formats — for any other purpose; and (ii) combining, merging, or de-aggregating Customer Personal Data that NC Squared receives from, or on behalf of, Customer with Personal Data that it receives from, or on behalf of, another person or persons, or collects from its own interaction with the consumer.

10.4 NC Squared shall only Process the Customer Personal Data during the term of this EULA, subject to clause 10.14 and the other provisions of this clause 10.

10.5 NC Squared shall only Process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to a third country that are restricted under the Data Protection Laws), as set out in this EULA or any other document agreed by the parties in writing.

10.6 Notwithstanding any other provision of this EULA, NC Squared may Process the Customer Personal Data if and to the extent that NC Squared is required to do so by applicable law. In such a case, NC Squared shall inform the Customer of the legal requirement before Processing, unless that law prohibits such information on important grounds of public interest.

10.7 NC Squared shall ensure that persons authorized to Process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

10.8 Taking into account the nature and potential risks of the Processing, NC Squared and the Customer shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer Personal Data, including ensuring that the Customer Personal Data shall be encrypted during transfer from the Salesforce servers to any NC Squared computer. The Customer is responsible for making an independent determination as to whether NC Squared’s security measures meet the Customer’s requirements and legal obligations under Data Protection Laws. NC Squared may update or modify its security measures from time-to-time; provided that, such updates and modifications do not result in a material degradation of the Customer Personal Data’s security as a whole. The Customer agrees that, except as set forth in this clause and clause 10.20, the Customer is responsible for ensuring a level of security appropriate to the risk in respect of its use of the Software and services hereunder in connection with the Customer Personal Data, including protecting its access credentials and protecting the security of the Customer Personal Data when in transit.

10.9 NC Squared must not engage any third party to Process the Customer Personal Data without the prior specific or general written authorization of the Customer. In the case of a general written authorization, NC Squared shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third-party processor, and if the Customer objects to any such changes before their implementation, then NC Squared shall, in its sole discretion, either (a) not implement the changes with respect to the Customer or (b) terminate this EULA without liability as of the date specified in its notice of termination (such date being before the date of implementation of the changes). NC Squared shall ensure that each third-party processor is subject to the equivalent legal obligations as those imposed on NC Squared by this clause 10. If NC Squared engages any other person to assist in Processing Customer Personal Data for a business purpose on behalf of Customer, or if any other person engaged by NC Squared engages another person to assist in Processing Customer Personal Data for that business purpose, to the extent required by Data Protection Laws, NC Squared shall notify Customer of that engagement in accordance with this clause 10.9, and the engagement shall be pursuant to a written contract binding the other person to observe all the requirements set forth in this clause 10.9.

10.10 NC Squared shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s or consumer’s rights under the Data Protection Laws, including, if applicable, a Verifiable Consumer Request under the CPRA. If NC Squared directly receives such a request from the data subject or consumer, NC Squared shall refer the request to Customer, and Customer shall respond directly to such person. Customer may request NC Squared’s assistance to the extent Customer deems necessary. NC Squared shall provide reasonable cooperation with Customer and Salesforce in responding to such requests.

10.11 NC Squared shall assist the Customer in ensuring compliance with the obligations relating to the security of Processing of Personal Data, the notification of Personal Data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.

10.12 Customer shall pay NC Squared for all time and materials incurred by NC Squared in cooperating and assisting Customer at Customer’s request pursuant to this clause 10 according to NC Squared’s then-current standard time-based charging rates. In cases where Customer is non-responsive to a verifiable consumer, government agency, or other third party regarding the possession of Customer Personal Data, Customer shall indemnify, defend and hold harmless NC Squared for any damages, fines, or administrative action resulting from Customer’s failure to respond.

10.13 NC Squared shall make available to the Customer all information reasonably necessary to demonstrate the compliance of NC Squared with its obligations under the Data Protection Laws. NC Squared shall notify Customer if NC Squared can no longer meet its obligations under this clause 10 or the Data Protection Laws and, in such event, NC Squared may terminate this EULA without liability as of the date specified in its notice of termination.

10.14 Unless the Customer agrees otherwise in writing, NC Squared shall delete the Customer Personal Data not less than 1 month and not more than 6 months following the date of effective termination of this EULA. If the Customer requests a copy of the Customer Personal Data following the date of effective termination of this EULA and before the deletion of the Customer Personal Data, NC Squared shall provide a copy of that Customer Personal Data to the Customer in such format as NC Squared may reasonably determine. NC Squared may charge the Customer with respect to the provision of that Customer Personal Data in accordance with NC Squared’s then-current standard time-based charging rates.

10.15 At the Customer’s request no more than once every 12 months and at Customer’s expense, NC Squared shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of NC Squared’s processing of Customer Personal Data in accordance with the Data Protection Laws and this clause 10. Customer’s audit plan (including selection of the auditor, the scope and duration of the audit, and confidentiality of the audit’s findings) shall be proposed and subject to NC Squared’s prior written approval, which shall not be unreasonably withheld.

10.16 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this EULA, then the parties shall use their best endeavors promptly to agree such variations to this EULA as may be necessary to remedy such non-compliance; provided however, that if, in NC Squared’s sole discretion, any required updates to this EULA make it commercially unreasonable or impractical for NC Squared to continue to provide the Software or services under this EULA, NC Squared may terminate this EULA without liability as of the date specified in its notice of termination.

10.17 The limitations and exclusions of liability in clause 8 shall not apply in respect of any breach of this clause 10, except that clause 8.11 shall apply in respect of any such breach by NC Squared.

10.18 Subject to clause 10.9, the Customer acknowledges and agrees that: (a) NC Squared may store and Process Customer Personal Data in any countries where NC Squared, its affiliates, or its subprocessors maintain data Processing operations; (b) if the Customer requests support services under this EULA, the provision of such support services may involve the storage and processing by NC Squared, using the Salesforce.com platform, of limited Customer Personal Data relating to the support service request and the transfer of limited Customer Personal Data relating to the support services request to the NC Squared UK Affiliate in the UK and the processing of that Customer Personal Data by the NC Squared UK Affiliate; and (c) Booking Engine (if used by the Customer) will send Customer Personal Data to and collect Customer Personal Data from providers of Integrated Services, and that this sharing of Customer Personal Data may involve transfers between the USA, the UK, the EEA and other jurisdictions.

10.19 If required by the Data Protection Laws, NC Squared shall ensure that any transfer of Customer Personal Data made in accordance with clause 10.18 shall be made under a contract between NC Squared and the relevant third-party processor meeting the requirements of the Data Protection Laws.

10.20 NC Squared shall: (a) taking into account the nature of NC Squared’s Processing of the Customer Personal Data and the information available to NC Squared, notify the Customer of any Security Incident affecting NC Squared’s systems of which it becomes aware, without undue delay; (b) provide timely information relating to such Security Incident as it becomes known or as the Customer reasonably requests; and (c) promptly take reasonable steps to contain, investigate, and mitigate such Security Incident. Except to the extent otherwise required by the Data Protection Laws, (i) the Customer is solely responsible for its compliance with Security Incident notification laws applicable to the Customer and for fulfilling any third-party notification obligations related to any Security Incidents required by the Data Protection Laws and (ii) the parties shall coordinate in good faith on developing the content of any related public statements or required notices to affected data subjects or relevant regulatory or supervisory authorities. “Security Incident” means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Personal Data on systems managed or otherwise controlled by NC Squared.

10.21 To the extent that the CPRA applies to the Processing of Personal Data by NC Squared under this EULA: (a) the parties acknowledge and agree that the Customer is a Business and NC Squared is a Service Provider and NC Squared is receiving Customer Personal Data from the Customer in order to provide the services pursuant to this EULA, which constitutes a Business Purpose and (b) NC Squared hereby certifies that it understands its obligations under this EULA with respect to the Processing of Customer Personal Data and shall comply with them.

11. TERMINATION

11.1 This EULA shall commence on the Effective Date and continue until terminated in accordance with its express terms. If either party breaches this EULA in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within 30 days after the breaching party’s receipt of such notice, this EULA shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).

11.2 Notwithstanding clause 11.1, NC Squared shall be entitled to: (a) immediately terminate this EULA upon notice; and (b) permanently prohibit the Customer from making any use of and/or accessing the Software in the event the Customer or any Customer Affiliate is, or NC Squared has reason to believe that the Customer or any Customer Affiliate is: (i) using the Software to commit a criminal act or to cause nuisance, annoyance or inconvenience to or harass others, including without limitation engaging in hacking activities; (ii) using illegal and/or unlawful means to access the Software; or (iii) doing an act or series of acts that shall or may reasonably be deemed to infringe any patents, copyrights, trademarks, design rights or any other intellectual property rights or other rights of any third parties.

11.3 Either party may terminate this EULA by giving at least 30 days’ written notice of termination to the other party, providing that such notice must terminate: (a) at the end of the then-current Subscription Period; and (b) after the end of any Minimum Term.

11.4 Upon any termination of this EULA: (a) the rights and licenses granted under this EULA shall terminate; (b) the Customer shall cease all use of the Software and shall ensure that the Customer Affiliates cease all use of the Software; and (c) the Customer shall, where requested, certify in writing to NC Squared its compliance with the foregoing. Clauses 1, 4.9, 5 (to the extent of unpaid fees), 7, 8, 9, 10, 11.2, 11.4 and 12 shall survive any termination of this EULA.

12. GENERAL

12.1 Either party may assign all of its contractual rights under this EULA to any successor to all or a substantial part of its business from time to time. Except as expressly provided in this clause 12.1 or elsewhere in the EULA, neither party shall assign its contractual rights under this EULA, in whole or in part, without the prior written consent of the other party. Any attempted assignment in violation of this clause 12.1 shall be void.

12.2 Neither party shall use the other party’s name in publicity or marketing materials without the prior written consent of that other party.

12.3 The Customer agrees that because of the unique nature of the Software and NC Squared’s proprietary rights therein, a demonstrated breach of this EULA by the Customer may irreparably harm NC Squared, and monetary damages may be inadequate compensation. Therefore, the Customer agrees that NC Squared shall be entitled to seek preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this EULA, without the requirement of posting bond or proving actual damages.

12.4 If any provision of this EULA or the Software thereof is declared void, illegal, or unenforceable, the remainder of this EULA will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision with a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision.

12.5 Any failure by any party to this EULA to enforce at any time any term or condition under this EULA will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this EULA.

12.6 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the non-performing party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable dispatch whenever such causes are removed.

12.7 Subject to clause 8.1, this EULA, together with any additional terms agreed in the Quotation, shall constitute the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof. In the event of a conflict between this EULA and any such additional terms, the additional terms shall take precedence.

12.8 This EULA may be varied by: (a) the written agreement of both parties; (b) the Customer giving its express acceptance of a variation specified by NC Squared using the Salesforce Platform; or (c) NC Squared giving to the Customer at least 45 days’ written notice of the variation, such variation to come into effect at the end of the Subscription Period current when such notice period expires.

12.9 This EULA is for the benefit of the parties and is not intended to benefit or be enforceable by any third party (including any Customer Affiliate). The exercise of the parties' rights under this EULA is not subject to the consent of any third party (including any Customer Affiliate).

12.10 The parties agree that NC Squared is an independent contractor and not an employee, agent, fiduciary or partner of the Customer.

12.11 This EULA shall be governed by and construed in accordance with the laws of the State of Delaware and the United States of America, without regard to conflict of laws principles. Subject to the arbitration clause below, the state or federal courts of the State of Delaware shall have non-exclusive jurisdiction over any disputes arising out of this EULA.

12.12 Any dispute, claim, or controversy arising out of or relating to this EULA or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the State of Delaware, before one arbitrator. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association and administered by the American Arbitration Association. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

12.13 Each of the Customer and NC Squared: (a) agrees that all claims arising in relation to this EULA will be resolved only on an individual basis and not in a class, collective, consolidated or representative action, arbitration or other similar process; and (b) expressly waives any right to have a claim determined on a class, collective, consolidated or representative basis.

12.14 This clause 12.14 only applies use of the Software by a branch or agency of the United States Government. The Software includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (1) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (2) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government will acquire only those rights set forth in this EULA with respect to the such items, and any access to or use of the Site by the United States Government constitutes: (a) agreement by the United States Government that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (b) acceptance of the rights and obligations herein.

Appendix 1

Data processing details

1. Nature and business purposes of the processing: to allow Customer personnel to receive communications and support for the NC Squared software and related services.
2. Types of data subjects: Customer employees and independent contractors.
3. Personal data to be processed: individual name, work email, user account data, calendar and appointment data, other data provided by the Customer to NC Squared and when requesting support services.
4. Sensitive / special categories of personal data to be processed: none
5. Duration of the processing: as per clause 10 of this EULA.
6. Service provider category: Salesforce plugin.