1. DEFINITIONS.
1.1 “Agreement” means these Terms and Conditions, the Order Form and any document incorporated by reference in to this Agreement.
1.2 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Customer Data, information derived from or concerning the Provider Service, the Provider System or the Documentation and the terms of this Agreement.
1.3 “Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the Provider Service or provided by Customer to Provider as part of the Provider Service.
1.4 “Documentation” means the online materials furnished by Provider that describe the features, functionality or operation of the Provider System, including without limitation, any designated final user manuals, handbooks, specifications and forms.
1.5 “Fees” is defined in Section 4 hereof.
1.6 “Order Form” means collectively the order documents representing the initial subscription to the Provider Service (and any subsequent modifications of the Order Form to the Provider Service), as agreed to between the parties in writing from time to time.
1.7 “Provider Service” means the on-line service delivered by Provider to Customer using the Provider System, as made available by Provider from time-to-time as specified in the Order Form.
1.8 “Provider System” means the technology, including hardware and software, used by Provider to deliver the Provider Service to Customer in accordance with this Agreement.
1.9 “Subscription Administrator” means the individual assigned by Customer having responsibility over all administrative and billing matters relating to Customer’s use of the Provider Service, as identified in the Order Form.
1.10 “SFDC” means Salesforce.com Inc.
1.11 “Terms and Conditions” means these Terms and Conditions forming part of the Agreement.
1.12 “UserID” is defined in Section 3.1 hereof.
1.13 “User” means s Customer’s employee, representative, consultant, contractor or agent who is authorized to use the Provider Service on behalf of Customer and has been supplied user identifications and passwords for this purpose.
2. PROVIDER SERVICE.
2.1 Subscription to the Provider Service. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Provider hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Provider Service by the number of Users identified in the Order Form in accordance with this Agreement solely for Customer’s internal business purposes and not for resale or to provide services to third parties. Only the execution of an Order Form by Customer and acceptance thereof by Provider constitutes a binding contract between the parties, as of the date of such acceptance by Provider. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Provider with respect to future functionality or features.
2.2 Additional Users. Access to the Provider Services cannot be shared with anyone other than a User. If Customer wishes to add additional Users, Customer will request such additional Users. Upon mutual execution of any such additional Order Form, Provider shall make the Provider Service available to the additional Users on the terms and conditions set forth in this Agreement and each executed additional Order Form.
2.3 Service Levels. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Provider shall use commercially reasonable efforts to (a) maintain the security of the Provider Service; and (b) provide the support services described in Section 11.
3. CUSTOMER’S USE OF THE PROVIDER SERVICE.
3.1 Access and Security Guidelines. Each User will be assigned a unique user identification name and password (“UserID”) for access to and use of the Provider Service. Customer shall be responsible for ensuring the security and confidentiality of its UserID’s. UserID’s may be shared within the Customer’s organization provided that UserID’s may not be provided to any individual who is not a User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Provider Service, and notify Provider promptly of any such unauthorized use. Customer will not use its access to the Provider Service to: (a) harvest, collect, gather or assemble information or data regarding other Provider customers without their consent; (b) access or copy any data or information of other Provider customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Provider Service or the data contained therein; or (d) harass or interfere with another Provider customer’s use and enjoyment of the Provider Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Provider Service.
3.2 Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Provider may take remedial action if Customer Data violates this Section 3.2, however, Provider is under no obligation to review Customer Data for accuracy or potential liability.
3.3 Use Restrictions. Customer is responsible for all activities that occur under Customer’s User accounts. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Provider System; (b) interfere in any manner with the operation of the Provider Service, or the Provider System or the hardware and network used to operate the Provider Service; (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Provider Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Provider System; or (e) otherwise use the Provider Service in any manner that exceeds the scope of use permitted under Section 2.1 hereof.
4. FEES, PAYMENT AND SUSPENSION OF SERVICES. As consideration for the subscription to the Provider Service and the support services provided by Provider under this Agreement, Customer will pay Provider the fees (“Fees”) set forth in and in accordance with the Order Form. All Fees will be billed in advance on a monthly basis and are due within thirty (30) days of receipt of invoice, unless otherwise agreed to in the order documents. Overdue amounts shall accrue interest at the rate of 12% per annum, or at the highest legal interest rate, if less. Customer shall reimburse Provider for all expenses (including reasonable attorneys’ fees) incurred by Provider to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Provider’s net income. Provider reserves the right (in addition to any other rights or remedies Provider may have) to discontinue the Provider Service and suspend all userid’s and Customer’s access to the Provider Service if any Fees set forth in the Order Form are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5. CONFIDENTIAL INFORMATION.
5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. OWNERSHIP.
6.1 Provider System and Technology. Customer acknowledges that Provider retains all right, title and interest in and to the Provider System and all software, materials, formats, interfaces, information, data, content and Provider proprietary information and technology used by Provider or provided to Customer in connection with the Provider Service (the “Provider Technology”), and that the Provider Technology is protected by intellectual property rights owned by or licensed to Provider. Other than as expressly set forth in this Agreement, no license or other rights in the Provider Technology are granted to the Customer, and all such rights are hereby expressly reserved by Provider. Provider shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Provider Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Provider Service.
6.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Provider will only use Customer Data to provide the Provider Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Provider Service. Customer grants to Provider all necessary licenses in and to such Customer Data solely as necessary for Provider to provide the Provider Service to Customer. Provider will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Provider will access and use such Customer Data only as required to perform requested services on behalf of Customer. Provider hereby notifies Customer that Customer Data will be transmitted outside of SFDC’s system in the provision of the Provider Service, and Customer acknowledges and agrees that SFDC shall not be responsible or liable for the privacy, security or integrity of any Customer Data so transmitted outside of SFDC’s system.
7. TERM AND TERMINATION.
7.1 Term. The initial term of this Agreement will commence on the Effective Date and continue for one (1) year, unless otherwise agreed to in the order documents. Thereafter, this Agreement will renew for additional one (1) year terms unless either party gives the other party prior written notice of non-renewal within sixty (60) days prior to the expiration of the then-current term. Provider reserves the right, upon giving written notice to the Customer to increase the Fees applicable to any renewal term where such increase shall not exceed 5% of the Fees paid by Customer in the term immediately preceding the renewal term.
7.2 Early Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the termination of this Agreement for any reason, (a) any amounts owed to Provider under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party in its possession or control. Provider agrees that upon the termination of this Agreement, any Customer Data in the possession or control of Provider will be returned to Customer in such electronic format as shall be reasonably determined by Provider. Provider furthermore agrees that upon any early termination of this Agreement, Provider will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Provider) for a reasonable time period after termination. Thereafter, Provider will remove all Customer Data from the Provider System and all Customer access to or use of the Provider System and Provider Service will be immediately suspended. The rights and duties of the parties under Sections 3.3, 4, 5, 6, 8, 9, 10, 12.3, 12.4 and 12.6 will survive the termination or expiration of this Agreement.
8. WARRANTY; DISCLAIMER. For a period of thirty (30) days after the Effective Date (the “Software Warranty Period”), Provider warrants that the Provider Service, when used as permitted by Provider and in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects. Other than the express warranty in the foregoing sentence, Provider makes no warranty concerning the Provider System or Provider Service and Customer acknowledges that Provider’s sole obligation with regard to the Provider Service is to provide the support services described in Section 2.3 and Section 11 hereof. ACCORDINGLY, THE PROVIDER SERVICE, THE PROVIDER SYSTEM AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY PROVIDER AND ITS SUPPLIERS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. PROVIDER AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. PROVIDER DOES NOT WARRANT THAT THE PROVIDER SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
9. INDEMNITY.
9.1 By Provider. If any action is instituted by a third party against Customer based upon a claim that the Provider Service or Provider System, as delivered, infringes United States or Canadian copyright, Provider shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Provider may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Provider Service, (b) replace or modify the Provider System or Provider Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Provider Service and refund any amounts previously paid for the Provider Service attributable to the remainder of the then-current term of this Agreement. Provider shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Provider Service or Provider System (i) after it has been modified by Customer or a third party without Provider’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Provider. This Section sets forth the entire obligation of Provider and the exclusive remedy of Customer against Provider or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the Provider Service or Provider System.
9.2 By Customer. If any action is instituted by a third party against Provider (a) arising out of or relating to Customer’s use of the Provider System or Provider Service (including claims by any customer or business partner of Customer); or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Provider and shall pay all damages attributable to such claim which are finally awarded against Provider or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that is described in Section 9.1 above or arises out of a breach of this Agreement by Provider.
9.3 Conditions. Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
10. LIMITATION OF LIABILITY. PROVIDER’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE PROVIDER SERVICE AND THE PROVIDER SYSTEM, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO PROVIDER BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER’S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST PROVIDER WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL PROVIDER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE PROVIDER SYSTEM OR PROVIDER SERVICE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. SUPPORT SERVICES.
11.1 Terms. Subject to Customer paying the Fees and complying with the terms of the Agreement, Provider will provide the support services as set forth below (the “Support Services”). For purposes of this Section 11, “Error” means the failure of the Provider Service to operate in material conformity with the then current Documentation, other than any nonconformity resulting from faulty Customer Data, failure, misuse or improper use of the Provider Service or failure of any telecommunications or connectivity equipment of service not provided by Provider.
11.2 Scope of Services. During the term of the Agreement, Provider will provide Customer the following standard maintenance services relating to the Provider System:
(a) Corrections of substantial defects in the Provider System so that the Provider System will operate as described in the current Documentation in all material respects.
(b) At the sole discretion of Provider, periodic updates to the Provider System that may incorporate (a) corrections of any substantial Errors, (b) fixes of any minor bugs, and (c) enhancements to the Provider System.
(c) Off-site support to two designated trained personnel from 5:30am to 5:00pm (PST) during regular business days Monday through Friday not including national holidays, on the use of the Provider System and the Provider Service. Such support may be provided via electronic mail, telephone service, public bulletin boards, and/or other similar methods deemed appropriate by Provider.
11.3 Excluded Services. Provider may, by separate agreement with Customer, provide services that are beyond the scope of the services described in Section 2.3 or this Section 11 at Provider then current time and materials services rates.
11.4 On-Site Support. Provider does not provide On-Site Support to Customers.
11.5 Customer Requirements.
(a) Customer will provide to Provider access to its system(s) used to connect to the Provider Service covered by this Support Services agreement via the internet or other mutually agreeable means for purposes of providing Support Services.
(b) Customer shall notify Provider of Customer’s designated support service contact. To the maximum extent practicable, Customer’s communications with Provider will be through this contact.
11.6 Maintenance. Provider will use reasonable commercial efforts to cure reported and verifiable Errors in the Provider System.
12. GENERAL PROVISIONS
12.1 Publicity. Provider and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and Provider, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Customer agrees to allow Provider to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Provider and a user of the Provider Service.
12.2 Assignment. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer agrees that Provider may subcontract certain aspects of the Provider Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Provider of any of its obligations hereunder. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the successors and assignees of the parties.
12.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia, Canada without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a court sitting in British Columbia, Canada, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding, except for applications for injunctive relief by Provider. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party.
12.4 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via cable, telegram, telex, telecopier, fax (all with confirmation of receipt), or (d) sent by recognized air courier service.
12.5 Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
12.6 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. 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.
12.7 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
12.8 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
