1. DEFINITIONS

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

“AppExchange” means the online directory of applications that interoperate with Salesforce.com and includes a listing for the Services. The AppExchange is located at http://www.salesforce.com/appexchange or at any successor websites.

“Edition” means the specific Software Product of the Service provided by FirmWorks Inc. The Edition refers to the free trial Edition or a paid Edition.

“Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between You or Your Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.

“Org“, “Sandbox Org” or “Production Org” means the virtual space (instance) provided by Salesforce.com to You that includes Your salesforce data, customizations and applications and is used in connection with the Services.  An Org may reference Your production environment (“Production Org”) or a developer or test instance (“Sandbox Org”).

“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form.

“FileViewer” means the Software Product that is provided as a service by FirmWorks Inc. and collectively represents all versions of the product.

“Services” or “Software Product” means the online, Web-based applications provided by FirmWorks Inc. via the AppExchange and/or other designated websites, that are ordered by You under an Order Form, including associated maintenance and support for said applications.

“Subscription Term” is a subscription period indicated on the Agreement when You can use Services provided by FirmWorks Inc.

“Term” means collectively the Subscription Term.

“Documentation” means the FAQ accessible at https://getfirmworks.com/fileviewer/#faq and the Quick Start Guide accessible at https://getfirmworks.com/fileviewer/documentation, as updated from time to time.

“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You. Each user of the Service must also have a valid and compatible Salesforce License provisioned in order to use the Service. Users may include but are not limited to Your employees, consultants, contractors, and agents, and third parties with which You transact business.

“Licensor” means FirmWorks Inc.

“You,” “Your,” or “Licensee” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

“Your Data” means electronic data and information submitted by or for You to FirmWorks Inc. in connection with the Purchased Services or collected and processed by or for You using the Purchased Services.

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2. SERVICES

2.1. Right to Access Services.  Subject to the terms of this Agreement, FirmWorks Inc. hereby grants to You during the Subscription Term, a non-sublicensable, non-transferable, worldwide, non-exclusive right to access and use the Services in accordance with this Agreement. You may use Services solely for Your internal business purposes. FileViewer is licensed, not sold, for use. A license confers no title or ownership in this Software Product and should not be construed as a sale of any rights in this Software Product or source code.

2.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality, and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services (iv) use the Services only in accordance with the documentation and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) knowingly or intentionally use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) knowingly or intentionally use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

2.3. Users. You may access and use the Services up to the maximum number of Users specified on the paid agreement. A prerequisite to accessing FileViewer requires that, during the Term, each User is concurrently provisioned with an active Salesforce license that is compatible with the Service. Not all Salesforce license types, or Salesforce Editions may be compatible with the Service. It is Your responsibility to ensure Your Salesforce users are provisioned correctly with a compatible Salesforce License type.  A single FileViewer license cannot be shared between active Salesforce users or in multiple Salesforce Production Orgs.  A license to FileViewer may be reassigned from an inactive Salesforce user to an active Salesforce user during the Term without additional costs. A licensed FileViewer User may access and use the Software Product in all Sandboxes that are linked to Your primary Production Org without additional cost. If there are Salesforce users in Your Org who are not actively provisioned for FileViewer, those Salesforce users will be restricted from viewing content created by FileViewer. If You wish to add additional Users during the Subscription Period, you must submit a new executed Order Form. Upon mutual execution of the terms of a new Order Form, FirmWorks Inc. shall make Services available to the additional users on the terms and conditions set forth in this Agreement and the executed Order Form.

2.4. Usage Limitations and Editions

2.4.1 Usage Limitations.  Services may be subject to both internal and external limitations. Internal limitations are controlled by FirmWorks Inc., such as, for example, limits on the number of users. Any such limitations are specified in the Order Form. External limitations are imposed by parties outside the control of FirmWorks Inc. and may impact the Service. Examples of such external limitations include but are not limited to Salesforce Execution Governors and Limits, which are set forth at https://developer.salesforce.com/docs/atlas.en-us.apexcode.meta/apexcode/apex_gov_limits.htm. External limitations are subject to change without notice from FirmWorks Inc. and You accept that they may negatively impact the Service.

2.4.2 Editions.  All Users and any subsequent additional Users in Your Salesforce Org must be on the same Edition.  Purchased Subscriptions will not be subject to any feature changes during the Subscription Term, unless You, at Your discretion, choose to install an updated version (“Release”) of the Software Product. By installing a Release, you agree to be subject to the feature changes and/or new limitations of that Edition at the time of install. Downgrading between Editions is not possible at any time. The free Trial Period Edition may be withdrawn or changed by FirmWorks Inc. at any time without notification.

2.5. Support.  Support services provided by FirmWorks Inc. in connection with the Services under this Agreement are incorporated by reference as set forth at https://www.getfirmworks.com/support.

2.6. Upgrades.  Services upgrades and bug-fixes (collectively, “Modifications”) from FirmWorks Inc., shall be considered a part of the Services and subject to the terms and conditions of this Agreement and Order Forms. Pursuant to Support, FirmWorks Inc., may require You to upgrade to the latest Release of the Software Product to resolve an issue. FirmWorks Inc. makes no promise on future upgrade suitability or backward compatibility. Notwithstanding the foregoing, FirmWorks Inc. may make an upgraded version of the Software Product available during the Term, and You are entitled to test and use such upgrades of the Software Product at Your discretion and risk without incurring any additional licensing costs. You accept and assume any and all risks associated with any upgrades including but not limited to interoperability and compatibility.

2.7. Future Functionality. You agree that Your purchase is based solely on existing features and functionality and not contingent on delivery of any future features or functionality even in the case where FirmWorks Inc may have made oral or written comments regarding future features or functionality.

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3. FEES, PAYMENT, AND SUSPENSION

3.1. Fees and Payment. You shall pay in advance all fees for users to access and use the Service. Fees are described in the applicable Service listing on the Salesforce AppExchange. FirmWorks Inc will invoice You annually, and You will not be given access to the Service until You have paid the applicable fees. The first annual fee shall start to accrue the earlier of (i) the day you first access the Service, or (ii) the date set forth on the Order Form. Payment obligations are non-cancelable and all fees paid are non-refundable. You may purchase additional user licenses at any time on a pro-rata basis so that all licenses will have the same expiration date. Fees for the Service are based on subscriptions purchased during a Subscription Term and not actual usage. The number of subscriptions purchased cannot be decreased during a Subscription Term. All amounts are quoted in and must be paid in US dollars. The fees do not include any taxes, levies or duties or similar government assessments of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement (collectively “Taxes”) and You shall be solely responsible for all such Taxes other than taxes based solely on FirmWorks Inc’s income. If FirmWorks Inc has the legal obligation to pay or collect Taxes for which You are responsible under this section, FirmWorks Inc will invoice You and You will pay that amount unless You provide FirmWorks with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.2. Suspension. If there are any amounts overdue for 30 days or more under this or any other agreement for the Service, FirmWorks Inc. may, without limiting any other rights, suspend the Services to You until such amounts are paid in full. FirmWorks Inc. is an intended third-party beneficiary of this Agreement.

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4. TERM AND TERMINATION

4.1. Term of Agreement. This Agreement commences on the date of signature and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free Trial Period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free Trial Period. The Trial Period may be terminated by FirmWorks Inc. at any time without the consent of or notification to You.

4.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein.

4.3. Termination. FirmWorks may terminate Your access to the Service for cause: (i) upon 30 days written notice to You of a material breach if such breach remains uncured at the expiration of such period, or (ii) if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

4.4. Surviving Provisions. Section 2 (Services), 4 (Term and Termination), 6 (Proprietary Rights), 7 (Limited Liability), 8 (Warranty), 10 (Confidentiality), 11 (Indemnification), 12 (Severability), 13 (General Provisions) and 14 (Governing Law, Jurisdiction, Venue and Notices) shall survive any termination or expiration of this Agreement.

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5. NON–FIRMWORKS INC. PROVIDERS

5.1. Third parties may from time to time make available to You (e.g., through the AppExchange) third-party products or services, including but not limited to Non- FirmWorks Inc. Applications and implementation, customization, and other consulting services.  Any acquisition by You of such non-FirmWorks Inc. products or services, and any exchange of data between You and any Non-FirmWorks Inc. provider, is solely between You and the applicable provider. FirmWorks Inc. does not warrant or support Non-FirmWorks Inc. products or services, whether they are designated by FirmWorks Inc. as “certified” or otherwise. Subject to Section 5.2 (Interoperation with Non-FirmWorks Inc. Services), no purchase of non-FirmWorks Inc. products or services is required to use the Services except a supported Salesforce.com user license, supported computing device, supported operating system, supported web browser and Internet connection.

5.2. Interoperation with Non-FirmWorks Inc. Services. The Services may contain optional features designed to interoperate with Non-FirmWorks Inc. Applications (e.g., Salesforce applications, Google applications). If you implement optional features, you may be required to obtain access to such Non-FirmWorks Inc. Applications from their providers. If the provider of any such Non-FirmWorks Inc. Application ceases to make the Non-FirmWorks Inc. Application available for interoperation with the corresponding Service features on reasonable terms, we may cease providing such Service features without entitling You to any refund, credit, or other compensation.

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6. PROPRIETARY RIGHTS

6.1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, FirmWorks Inc. reserve all rights, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

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7. LIMITED LIABILITY

LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION DOES NOT INCLUDE ANY CONSIDERATION FOR OR ASSUMPTION BY FIRMWORKS INC.  OF THE RISK OF LICENSEE’S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE’S USE OR LOSS OF USE OF THE SOFTWARE PRODUCT. ACCORDINGLY, LICENSEE AGREES THAT FIRMWORKS INC. SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER FORESEEN OR UNFORESEEN OR WHETHER OR NOT FIRMWORKS INC. HAD NOTICE OF SAME, ARISING OUT OF THE LICENSING OR USE, FAILURE OR LOSS OF USE OF THE SOFTWARE PRODUCT. The Licensee agrees that FirmWorks Inc. shall not be responsible for ANY losses in connection to the Software Product including, but not limited to, loss of data, corruption of ANY data, loss of Software Product functionality or employee productivity losses even if losses are shown to be caused by the Software Product or a security breach related to the Software Product. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

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8. WARRANTY

The Licensee agrees that the Software Product is provided “AS IS”.  The Licensee has made their purchasing decision based solely on existing features and functionality. FirmWorks Inc. has made no promise nor is there any expectation that the Software Product is capable of or will be capable of performing anything over and above what is provided in the Salesforce AppExchange Listing. The Licensee acknowledges and assumes the risk of outages and future incompatibilities that may arise between the Software Product and any dependent or independent computer applications, platforms, or systems, and assumes all risk that any such dependencies could affect the Software Product in unintended, undesirable ways or render the Software Product inoperable. Technologies provided by third-party vendors including, but not limited to, Salesforce, Google, and Microsoft may introduce changes that have unintended consequences and result in the Software Product becoming unusable. Licensee assumes all such risks.  FirmWorks Inc. DOES NOT WARRANT THAT SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, OR COMPLETELY SECURE.

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9. EU DATA PROTECTION (GDPR)

9.1. EU Data Protection Directive 95/46/EC and Processing Personal Data. Since the Services run entirely within Your Salesforce Org, FirmWorks Inc. is not directly managing Your data with respect to the storage, transfer, blocking, destruction of personal data nor the purpose, timing, or frequency of such events. While Your data is used in connection with Your use of the Service, all Your data remains within Your existing Salesforce data servers, without direct access or inter-mediation by FirmWorks Inc. For the purposes of EU Data Protection Directive and this Agreement, FirmWorks Inc. considers itself neither a “Data Processor” nor a “Data controller”. As such, FirmWorks Inc. does not possess documentation for security measures that protect Your data as this is obtainable only from Salesforce. This does not mean that these security features are not present, but rather that FirmWorks Inc. has no involvement nor bearing over the specific measures enacted to protect Your data or direct control of how data is processed.

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10. CONFIDENTIALITY

10.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) 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. Your Confidential Information shall include Your Data, FirmWorks Inc. Confidential Information shall include the Services, and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However Confidential Information (other than Your 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) is received from a third party (other than Your contractors) without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

10.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of it and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel, contractors, advisors, and accountants without the other party’s written consent.

10.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

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11. INDEMNIFICATION

11.1. Indemnification by You. You shall indemnify and hold FirmWorks Inc., its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim arising from or related to FirmWorks Inc.’s access to, or possession, manipulation, processing, or use of the Customer Data or User Details as is necessary to provide the FileViewer Service.

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12. SEVERABILITY AND WAIVER

If any provision of this Agreement shall be held by a court of competent authority to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will, in any event, be binding on or effective against such party unless it is in writing and signed by such party, and then the waiver will be effective only in the specific instance and for the purpose for which given.

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13. GENERAL PROVISIONS

13.1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement.

13.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

13.3. Captions.  The captions and headings are inserted in this Agreement for convenience only and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.

13.4. Execution.  Each party acknowledges that facsimile or e-mail (PDF) signatures are fully binding, and the signatory for each party certifies that he or she has full authority to legally bind its organization to the terms of this Agreement.

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14. GOVERNING LAW, JURISDICTION, VENUE AND NOTICES

14.1. General. FirmWorks Inc., a Colorado Corporation, is an intended third-party beneficiary of this Agreement. Notices should be addressed to FirmWorks Inc., 3261 Traver Drive, Broomfield, CO 80023. The governing law is the State of Colorado and controlling United States Federal Law.

14.2. Agreement to Governing Law and Jurisdiction. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Colorado. The Colorado State courts of Broomfield County, Colorado (or, if there is exclusive federal authority) shall have exclusive authority and venue over any dispute arising out of this Agreement, and Licensee hereby consents to the authority of such courts.

14.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

14.4. Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder 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 first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). You agree to promptly notify FirmWorks Inc. of any changes to the information provided.

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