Propel Master Subscription Agreement
Terms & Conditions
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
- “Combined Solution” means the combination of the Propel Application and the Platform.
- “Customer Data” means all electronic data or information submitted by Customer to the Service.
- “Organization” or “Org” means a separate set of Customer Data and SFDC product customizations held by SFDC in a logically separated database (i.e., a database segregated through password-controlled access).
- “Order Form” means the ordering documents representing the initial purchase of the Service as well as any subsequent purchases agreed to between the Parties in writing from time to time, that are executed hereunder and deemed incorporated into the Agreement that specify, among other things, the number of subscriptions ordered, the Subscription Term and the applicable fees.
- “Propel Object” refers to and means a designated storage area in the Salesforce.com database.
- “Service” means the online, Web-based service, including associated offline components, provided by Propel via http://www.salesforce.com and/or other designated websites.
- “SFDC” means salesforce.com, inc., a third party.
- “SFDC Platform Service Terms” means the terms governing Customer’s access and use of the salesforce.com platform. Such terms are provided below.
- “Subscription Term” means the period of time between the applicable Subscription Start Date and Subscription End Date as set forth in an Order Form.
- “User Guide” means the online user guide for the Service, accessible via the Propel Customer Success Portal, as updated from time to time.
- “Users” means Customer's employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Propel at Customer's request).
2.1. Provision of Service. Propel shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and any and all Order Forms executed hereunder from time to time. During the term of this Agreement, (i) the Service shall perform materially in accordance with the User Guide, and (ii) the functionality of the Service will not be materially decreased from that available as of the Effective Date. Customer agrees that its purchase of subscriptions is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by Propel with respect to future functionality or features.
2.2. Additional Users. User subscriptions are for named Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer, changed job status or function, or otherwise no longer require ongoing use of the Service. Unless otherwise specified in the relevant Order Form (i) additional User subscriptions may be added in increments of 1 unit; (ii) the term of the additional User subscriptions shall be coterminous with the expiration of the then current Subscription Term; and (iii) pricing for the additional User subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the then current Subscription Term.
2.3. SFDC’s Role. Customer recognizes and agrees that: (a) the Service is hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Service, Customer agrees to comply with the SFDC Platform Service Terms.
- Use of the Service
3.1. Propel Responsibilities. Propel shall, using the salesforce.com provisioning and infrastructure: (i) in addition to its confidentiality obligations under Section 6, not use, edit or disclose to any party other than Customer the Customer Data; (ii) maintain the security and integrity of the Service and the Customer Data; and (iii) use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, except for: (a) planned SFDC downtime; (b) any unavailability caused by circumstances beyond Propel’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Propel employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Propel’s possession or reasonable control, and network intrusions or denial of service attacks.
3.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer's User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Propel promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service.
3.3. Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access.
3.4. Admin User Restriction. Propel shall assign a minimum of one (1) User as the Admin User. Admin User subscriptions may be used only to configure and administer the Combined Solution. Admin User subscriptions may not be used to access, distribute, or use any CRM functionality. CRM functionality is defined as access to CRM (“customer relationship management”) standard objects through standard tabs, related lists in custom tabs, through the SFDC web services API or through reports and dashboards. CRM standard objects include campaigns, leads, opportunities, cases, solutions and forecasts.
- Fees & Payment
4.1. User Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, all fees are quoted in United States dollars. Fees are based on the number of User subscriptions purchased in the relevant Order Form, not the extent of actual usage. Except as otherwise provided, fees are non-refundable and non-cancelable, and the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form.
4.2. Invoicing & Payment. License fees for the term of the Service will be invoiced annually in advance and otherwise in accordance with the terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, charges are due thirty (30) days from the invoice date. Unless otherwise stated in the Order Form, all payments made under this Agreement shall be in United States dollars.
4.3. Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Propel’s discretion, late charges at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Audit. Propel may audit use of this User subscription through the Combined Solution. Should any audit reveal any unauthorized use of this User subscription, Customer agrees to pay to Propel, within thirty (30) days of Propel’s notice of the audit results the difference between the price charged by Propel for the applicable User subscription and Propel’s then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at Propel’s then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
4.5. Suspension of Service. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Propel reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
4.6. Taxes. Unless otherwise stated, Propel’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Propel’s income. If Propel has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Propel with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Proprietary Rights
5.1. Reservation of Rights. Customer acknowledges that in providing the Service, Propel utilizes (i) the Propelplm.com name, the Propelplm.com logo, the Propelplm.com domain name, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Propel Technology") and that the Propel Technology is covered by intellectual property rights owned or licensed by Propel (collectively, "Propel IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Propel Technology or Propel IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2. License Grant. Propel grants Customer and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in accordance with the terms of this Agreement.
5.3. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or Propel Technology; (ii) extract information from a Propel Object inside salesforce.com and pull into any other salesforce.com Object for the purposes of allowing non-Propel Users to access information contained inside a Propel Object (iii) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service, other than on Customer's own intranets or otherwise for its own internal business purposes; or (iv) disassemble, reverse engineer, or decompile the Service or Propel Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
5.4. Customer Data. As between Propel and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement. Propel may access Customer's User accounts, including Customer Data, solely to respond to service or technical problems or at Customer's request.
6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the Propel Technology, business and marketing plans, technology and technical information, screen and product designs and the interoperability with salesforce.com, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its 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 for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its affiliates, employees, contractors and/or agents.
6.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Warranties & Disclaimers
7.1. Warranties. Each Party represents and warrants that it has the legal power to enter into this Agreement. Propel represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the Propel Technology to grant the rights and licenses granted herein; and (iii) the Service and Propel Technology do not infringe any intellectual property rights of any third party.
7.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, Propel MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. Propel HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Mutual Indemnification
8.1. Indemnification by Propel. Subject to this Agreement, Propel shall defend, indemnify and hold Customer harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided that Customer (a) promptly gives written notice of the Claim to Propel; (b) gives Propel sole control of the defense and settlement of the Claim (provided that Propel may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Propel, at Propel’s cost, all reasonable assistance.
8.2. Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Propel harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Propel by a third party alleging that the Customer Data or Customer's use of the Service (as opposed to the Service itself) infringes the intellectual property rights of, or has otherwise harmed, a third party; provided that Propel (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Propel of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance.
- Limitation of Liability
9.1. Limitation of Liability. EXCEPT FOR A VIOLATION OF SECTION 5 (PROPRIETARY RIGHTS) OR SECTION 4 (FEES AND PAYMENT), NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- Term & Termination
10.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2. Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein. At the end of the initial Subscription Term, the Service(s) described in the active Order Form(s) will auto-renew for a period of 1 year, unless (i) Customer notifies Propel at least forty-five (45) days in advance of their intent not to renew; or (ii) renewal Order Form(s) have already been negotiated. The Subscription fees for the auto-renew term may increase by 5% over the prior Subscription Term unless otherwise specified in the active Order Form(s).
10.3. Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete, from all Customer desktop, mobile, web and other environments, any Propel provided software related to the Service. This includes managed packages or other software that has been installed in Customer’s Salesforce environments.
10.4. Termination for Cause. A Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other Party if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Propel shall refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Propel prior to the effective date of termination.
10.6. Return of Customer Data. Upon request by Customer made within thirty (30) days of the effective date of termination, Propel will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer shall pay service fees for any data migration activities. After such 30-day period, Propel shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
10.7. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4, 5 (excluding Section 5.2), 6, 7, 8, 9, 10 and 11.
- General Provisions
11.1. Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
11.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement except as may be set forth in the SFDC Platform Service Agreement.
11.3. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.
11.4. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
11.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6. Assignment. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement together with all rights and obligations under 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 not involving a direct competitor of the other Party (if a public company, as listed in the other Party’s then-most recent 10-K filing). Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section will be void and of no effect.
11.7. Attorneys’ Fees. In any legal action or proceeding arising from, related to, or brought to enforce, construe, interpret, rescind or cancel this Agreement or any of its provisions (including any Order Forms executed hereunder), the prevailing Party shall be entitled to recover from the other Party reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, in addition to any other relief to which it may be entitled.
11.8. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
11.9. Venue. The state and federal courts located in Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each party also 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.
11.10. Export Control Laws. Each Party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the Parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Master Subscription Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of such exhibit, addendum or Order Form shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.12. Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
EXHIBIT B - SFDC Platform Service Terms
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE PROPELPLM SERVICE. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Organization” or “Org” means a separate set of Customer Data and SFDC product customizations held by SFDC in a logically separated database (i.e., a database segregated through password-controlled access).
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means PropelPLM, Inc.
“Reseller Application” means the Reseller Product Lifecycle Management application to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means, collectively, salesforce.com, inc. and its affiliates.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third Parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third Parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
- Use of Platform
1.1. Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
1.2. If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
1.3. Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
1.4. You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
1.5. You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
1.6. You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
- Third-Party Providers. Reseller and other third-party providers, some of which may be listed on pages within SFDC’s website and including providers of Third-Party Applications, offer products and services related to the Platform, the SFDC Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers’ use of the Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform and/or the SFDC Service such as by exchanging data with the Platform and/or the SFDC Service or by offering additional functionality within the user interface of the Platform and/or the SFDC Service through use of the Platform and/or SFDC Service's application programming interface. SFDC does not warrant any such third-party providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by SFDC as certified,” “validated” or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this SFDC Service Agreement.
- Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
- Access by Reseller. To the extent Reseller serves as the administrator of the Reseller Application for You, You acknowledge that your use of the Reseller Application may be monitored by Reseller and Reseller may access Your Data submitted to the SFDC Service or Reseller Application. By agreeing to this SFDC Service Agreement, you are consenting to such monitoring and access by Reseller.
- Return of Your Data. You have thirty (30) days from the date of termination of your Reseller Application subscription term in which to request a copy of Your Data, which will be made available to You in a .csv format. Any modifications to Your Data made by the Reseller Application outside of the Platform (if any) will not be captured in Your Data as returned and the return of any such modified data shall be the responsibility of Reseller.
- Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
- Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
- Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
- Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
- No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Further Contact. SFDC may contact You regarding new Platform and SFDC Service features and offerings.
- Third Party Beneficiary. SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
- Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC ("Directly Purchased SFDC Services"). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute "Customer Data" as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Exhibit C - Professional Services Terms
The terms of this Exhibit C apply only to the extent that Customer and Propel execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by Propel for Customer.
- PROFESSIONAL SERVICES
1.1. Professional Services. Propel will provide such professional services as are specifically described in applicable SOW (“Professional Services”), and Customer will reasonably cooperate with Propel with regard to Professional Services. The requirements of a SOW may be altered only through a change order executed by both Parties.
1.2. Acceptance. Configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or three (3) business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, Propel may revise and redeliver the Deliverable, and thereafter the procedures of this Section 1.2 will repeat.
- FEES & PAYMENT TERMS
2.1. Payment. Customer will pay Propel the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay Propel thirty (30) days from the date of invoice.
2.2. Other Expenses. Customer shall reimburse Propel for reasonable expenses incurred in performance of Professional Services so long as Customer has previously approved the expense or range of expenses in question.
- TERM AND TERMINATION
3.1. Term. Each SOW will continue for the term set forth therein, if any.
3.2. Termination. Unless the SOW provides to the contrary, Customer may terminate an SOW for convenience upon thirty (30) days written notice to Propel. Either Party may terminate a SOW for the other’s material breach of such SOW, including of any related obligations set forth in this Exhibit C, on thirty (30) days written notice, provided that if the other Party cures the breach before expiration of such notice period, the SOW will not terminate.
3.3. Effect of Termination. Upon termination of an SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay Propel such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay Propel the reasonable value of the Services received from Propel up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or this Exhibit C or this Agreement.
- INTELLECTUAL PROPERTY IN DELIVERABLES. Propel owns and retains ownership of all Deliverables, including without limitation preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such a license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the Service during the applicable Subscription Term(s).
5.1. Intellectual Property. Propel represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. Propel’s sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for Propel: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in Propel’s reasonable judgment, (3) to terminate the SOW in question and refund to Customer 1/36th of the fees paid for the Deliverable for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
5.2. Professionalism & Function. Propel warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Propel further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and Propel’s sole liability and responsibility for breach of any warranty in this Section 5.2 shall be for Propel to re-perform the Professional Services in question, including creation of Deliverables, and Customer’s right to such remedy shall continue until 10 business days after delivery of the Professional Services or Deliverable in question.
- IP INDEMNITY. A claim, suit, or proceeding alleging that a Deliverable infringes third party intellectual property rights will be considered a Claim pursuant to Section 8.1 of this Agreement and thus subject to Propel’s indemnity and other obligations set forth and limited in Section 8.1.
- RELATIONSHIP WITH THE SERVICE & THE AGREEMENT’S MAIN BODY
7.1. Service vs. Professional Services. Professional Services are not part of the Service (as that term is defined in Section 1 of this Agreement).
7.2. Construction. The provisions of the main body of the Agreement govern SOW’s and this Exhibit C. In the event of a conflict, the provisions of this Exhibit C will prevail over those of a SOW (and the provisions of the main body of this Agreement will prevail over those of this Exhibit C). Neither Party’s acts or omissions related to Professional Services, to a SOW, or to this Exhibit C, including without limitation breach of an SOW or of this Exhibit C, will give the other Party any rights or remedies not directly related to the SOW in question. Without limiting the generality of the foregoing, Propel’s breach of a SOW or of this Exhibit C will not give Customer the right to terminate this Agreement, the right to a refund of fees paid for the Service or of other fees not paid pursuant to such SOW, or the right to damages, specific performance, rescission, restitution, or other contract remedies based on the Parties’ transactions set forth anywhere in this Agreement other than in the applicable SOW, as well as in this Exhibit C to the extent applicable to such SOW. In addition to such other limits of liability as apply, including pursuant to Section 9.1 of this Agreement, Propel’s LIABILITY FOR ANY LOSS ARISING OUT OF OR RELATED TO A SOW SHALL BE LIMITED TO THE FEES PAID PURSUANT TO SUCH SOW. THE LIMIT OF LIABILTY IN THE PRECEDING SENTENCE IS SUBJECT TO THE PROVISIONS OF SECTION 9.1 OF THIS AGREEMENT.