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0 SFDC-MSA Nov 2018 Page 1 of 9 SFDC-MSA Nov 2018 Page 1 of 9
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2 MASTER SUBSCRIPTION AGREEMENT MASTER SUBSCRIPTION AGREEMENT
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4 THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF SFDC SERVICES. THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF SFDC SERVICES.
5 CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
6 IF CUSTOMER REGISTERS FOR A FREE TRIAL OF SFDC SERVICES OR FOR FREE SERVICES, THE APPLICABLE IF CUSTOMER REGISTERS FOR A FREE TRIAL OF SFDC SERVICES OR FOR FREE SERVICES, THE APPLICABLE
7 PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
8 BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER
9 FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF
10 THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY
11 OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH
12 ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL
13 REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE
14 SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT
15 ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
16 SFDC’s direct competitors are prohibited from accessing the Services, except with SFDC’s prior written consent. In addition, the SFDC’s direct competitors are prohibited from accessing the Services, except with SFDC’s prior written consent. In addition, the
17 Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking
18 or competitive purposes. or competitive purposes.
19 This Agreement was last updated on November 10, 2018. It is effective between Customer and SFDC as of the date of Customer’s This Agreement was last updated on November 10, 2018. It is effective between Customer and SFDC as of the date of Customer’s
20 accepting this Agreement. accepting this Agreement.
21 1. DEFINITIONS 1. DEFINITIONS
22 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject
23 entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting
24 interests of the subject entity. interests of the subject entity.
25 “Agreement” means this Master Subscription Agreement. “Agreement” means this Master Subscription Agreement.
26 “Beta Services” means SFDC services or functionality that may be made available to Customer to try at its option at no additional “Beta Services” means SFDC services or functionality that may be made available to Customer to try at its option at no additional
27 charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar
28 description. description.
29 “Content” means information obtained by SFDC from publicly available sources or its third party content providers and made “Content” means information obtained by SFDC from publicly available sources or its third party content providers and made
30 available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the
31 Documentation. Documentation.
32 “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case
33 of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for
34 which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates)
35 which have entered into Order Forms. which have entered into Order Forms.
36 “Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and “Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and
37 Non-SFDC Applications. Non-SFDC Applications.
38 “Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as “Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as
39 updated from time to time, accessible via help.salesforce.com or login to the applicable Service. updated from time to time, accessible via help.salesforce.com or login to the applicable Service.
40 “Free Services” means Services that SFDC makes available to Customer free of charge. Free Services exclude Services offered “Free Services” means Services that SFDC makes available to Customer free of charge. Free Services exclude Services offered
41 as a free trial and Purchased Services. as a free trial and Purchased Services.
42 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms,
43 time bombs and Trojan horses. time bombs and Trojan horses.
44 “Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, “Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including,
45 for example, the AppExchange at http://www.salesforce.com/appexchange, or the Heroku add-ons catalog at for example, the AppExchange at http://www.salesforce.com/appexchange, or the Heroku add-ons catalog at
46 https://elements.heroku.com/, and any successor websites. https://elements.heroku.com/, and any successor websites.
47 “Non-SFDC Application” means a Web-based, mobile, offline or other software application functionality that interoperates with “Non-SFDC Application” means a Web-based, mobile, offline or other software application functionality that interoperates with
48 a Service, that is provided by Customer or a third party and/or listed on a Marketplace including as Salesforce Labs or under a Service, that is provided by Customer or a third party and/or listed on a Marketplace including as Salesforce Labs or under
49 similar designation. Non-SFDC Applications, other than those obtained or provided by Customer, will be identifiable as such. similar designation. Non-SFDC Applications, other than those obtained or provided by Customer, will be identifiable as such.
50 SFDC-MSA Nov 2018 Page 2 of 9 SFDC-MSA Nov 2018 Page 2 of 9
51 “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into
52 between Customer and SFDC or any of their Affiliates, including any addenda and supplements thereto. By entering into an between Customer and SFDC or any of their Affiliates, including any addenda and supplements thereto. By entering into an
53 Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
54 “Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing “Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing
55 portal, as distinguished from Free Services or those provided pursuant to a free trial. portal, as distinguished from Free Services or those provided pursuant to a free trial.
56 “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or
57 provided to Customer free of charge (as applicable) or under a free trial, and made available online by SFDC, including associated provided to Customer free of charge (as applicable) or under a free trial, and made available online by SFDC, including associated
58 SFDC offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-SFDC SFDC offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-SFDC
59 Applications. Applications.
60 “SFDC” means the salesforce.com company described in the “SFDC Contracting Entity, Notices, Governing Law, and Venue” “SFDC” means the salesforce.com company described in the “SFDC Contracting Entity, Notices, Governing Law, and Venue”
61 section below. section below.
62 “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an
63 individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer
64 to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by SFDC without to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by SFDC without
65 charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, SFDC at Customer’s request) charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, SFDC at Customer’s request)
66 has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, has supplied a user identification and password (for Services utilizing authentication). Users may include, for example,
67 employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business. employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
68 2. SFDC RESPONSIBILITIES 2. SFDC RESPONSIBILITIES
69 2.1 Provision of Purchased Services. SFDC will (a) make the Services and Content available to Customer pursuant to this 2.1 Provision of Purchased Services. SFDC will (a) make the Services and Content available to Customer pursuant to this
70 Agreement, and the applicable Order Forms and Documentation, (b) provide applicable SFDC standard support for the Purchased Agreement, and the applicable Order Forms and Documentation, (b) provide applicable SFDC standard support for the Purchased
71 Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to
72 make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which SFDC make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which SFDC
73 shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond SFDC’s reasonable control, shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond SFDC’s reasonable control,
74 including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor
75 problem (other than one involving SFDC employees), Internet service provider failure or delay, Non-SFDC Application, or denial problem (other than one involving SFDC employees), Internet service provider failure or delay, Non-SFDC Application, or denial
76 of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to SFDC’s of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to SFDC’s
77 provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject
78 to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form. to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
79 2.2 Protection of Customer Data. SFDC will maintain appropriate administrative, physical, and technical safeguards for protection 2.2 Protection of Customer Data. SFDC will maintain appropriate administrative, physical, and technical safeguards for protection
80 of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include,
81 but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by
82 Customer or Users). Except with respect to a Free Trial, the terms of the data processing addendum at Customer or Users). Except with respect to a free trial, the terms of the data processing addendum at
83 https://www.salesforce.com/company/legal/agreements.jsp (“DPA”) are hereby incorporated by reference and shall apply to the https://www.salesforce.com/company/legal/agreements.jsp (“DPA”) are hereby incorporated by reference and shall apply to the
84 extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic
85 Area (EEA), the United Kingdom and Switzerland are processed by SFDC, its Processor Binding Corporate Rules, the EU-US Area (EEA), the United Kingdom and Switzerland are processed by SFDC, its Processor Binding Corporate Rules, the EU-US
86 and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the
87 purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer's purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer's
88 acceptance of this Agreement, and an applicable Affiliate's execution of an Order Form, shall be treated as its execution of the acceptance of this Agreement, and an applicable Affiliate's execution of an Order Form, shall be treated as its execution of the
89 Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of
90 termination or expiration of this Agreement, SFDC will make Customer Data available to Customer for export or download as termination or expiration of this Agreement, SFDC will make Customer Data available to Customer for export or download as
91 provided in the Documentation. After such 30-day period, SFDC will have no obligation to maintain or provide any Customer provided in the Documentation. After such 30-day period, SFDC will have no obligation to maintain or provide any Customer
92 Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or
93 otherwise in its possession or control, unless legally prohibited. otherwise in its possession or control, unless legally prohibited.
94 2.3 SFDC Personnel. SFDC will be responsible for the performance of its personnel (including its employees and contractors) and 2.3 SFDC Personnel. SFDC will be responsible for the performance of its personnel (including its employees and contractors) and
95 their compliance with SFDC’s obligations under this Agreement, except as otherwise specified in this Agreement. their compliance with SFDC’s obligations under this Agreement, except as otherwise specified in this Agreement.
96 2.4 Beta Services. From time to time, SFDC may make Beta Services available to Customer at no charge. Customer may choose to 2.4 Beta Services. From time to time, SFDC may make Beta Services available to Customer at no charge. Customer may choose to
97 try such Beta Services or not in its sole discretion. Any use of Beta Services is subject to the Beta Services terms at try such Beta Services or not in its sole discretion. Any use of Beta Services is subject to the Beta Services terms at
98 https://www.salesforce.com/company/legal/agreements.jsp. https://www.salesforce.com/company/legal/agreements.jsp.
99 2.5 Free Trial. If Customer registers on SFDC’s or an Affiliate’s website for a free trial, SFDC will make the applicable Service(s) 2.5 Free Trial. If Customer registers on SFDC’s or an Affiliate’s website for a free trial, SFDC will make the applicable Service(s)
100 available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer
101 registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for
102 such Service(s), or (c) termination by SFDC in its sole discretion. Additional trial terms and conditions may appear on the trial such Service(s), or (c) termination by SFDC in its sole discretion. Additional trial terms and conditions may appear on the trial
103 registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally
104 binding. binding.
105 ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES
106 BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS
107 SFDC-MSA Nov 2018 Page 3 of 9 SFDC-MSA Nov 2018 Page 3 of 9
108 CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL,
109 PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL
110 PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE
111 TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM
112 ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT
113 WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER
114 DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.
115 NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS”
116 SECTION AND “INDEMNIFICATION BY SFDC” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE SECTION AND “INDEMNIFICATION BY SFDC” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE
117 PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SFDC SHALL HAVE NO INDEMNIFICATION OBLIGATIONS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SFDC SHALL HAVE NO INDEMNIFICATION OBLIGATIONS
118 NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH
119 EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SFDC’S EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SFDC’S
120 LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED
121 $1,000.00. WITHOUT LIMITING THE FOREGOING, SFDC AND ITS AFFILIATES AND ITS LICENSORS DO NOT $1,000.00. WITHOUT LIMITING THE FOREGOING, SFDC AND ITS AFFILIATES AND ITS LICENSORS DO NOT
122 REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE
123 TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING
124 THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE
125 DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO
126 THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE
127 UNDER THIS AGREEMENT TO SFDC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S UNDER THIS AGREEMENT TO SFDC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S
128 USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT
129 AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
130 CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO
131 BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE. BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
132 2.6 Free Services. SFDC may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions 2.6 Free Services. SFDC may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions
133 of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall
134 control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage
135 over these limits requires Customer’s purchase of additional resources or services. Customer agrees that SFDC, in its sole over these limits requires Customer’s purchase of additional resources or services. Customer agrees that SFDC, in its sole
136 discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees
137 that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that SFDC will that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that SFDC will
138 not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data
139 from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if SFDC from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if SFDC
140 terminates Customer’s account, except as required by law SFDC will provide Customer a reasonable opportunity to retrieve its terminates Customer’s account, except as required by law SFDC will provide Customer a reasonable opportunity to retrieve its
141 Customer Data. Customer Data.
142 NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS”
143 SECTION AND “INDEMNIFICATION BY US” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” SECTION AND “INDEMNIFICATION BY US” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS”
144 WITHOUT ANY WARRANTY AND SFDC SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF WITHOUT ANY WARRANTY AND SFDC SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF
145 ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SFDC’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, SFDC AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SFDC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE SFDC’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, SFDC AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SFDC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
146 3. USE OF SERVICES AND CONTENT 3. USE OF SERVICES AND CONTENT
147 3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access 3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access
148 to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing
149 portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying
150 subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c)
151 any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are
152 not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made
153 by SFDC regarding future functionality or features. by SFDC regarding future functionality or features.
154 3.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer 3.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer
155 exceeds a contractual usage limit, SFDC may work with Customer to seek to reduce Customer’s usage so that it conforms to that exceeds a contractual usage limit, SFDC may work with Customer to seek to reduce Customer’s usage so that it conforms to that
156 SFDC-MSA Nov 2018 Page 4 of 9 SFDC-MSA Nov 2018 Page 4 of 9
157 limit. If, notwithstanding SFDC’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will limit. If, notwithstanding SFDC’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will
158 execute an Order Form for additional quantities of the applicable Services or Content promptly upon SFDC’s request, and/or pay execute an Order Form for additional quantities of the applicable Services or Content promptly upon SFDC’s request, and/or pay
159 any invoice for excess usage in accordance with the “Invoicing and Payment” section below. any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
160 3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and 3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and
161 Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired
162 Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-SFDC Applications with Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-SFDC Applications with
163 which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of
164 Services and Content, and notify SFDC promptly of any such unauthorized access or use, (d) use Services and Content only in Services and Content, and notify SFDC promptly of any such unauthorized access or use, (d) use Services and Content only in
165 accordance with this Agreement, Documentation, the Acceptable Use and External Facing Services Policy at accordance with this Agreement, Documentation, the Acceptable Use and External Facing Services Policy at
166 https://www.salesforce.com/company/legal/agreements.jsp, Order Forms and applicable laws and government regulations, and https://www.salesforce.com/company/legal/agreements.jsp, Order Forms and applicable laws and government regulations, and
167 (e) comply with terms of service of any Non-SFDC Applications with which Customer uses Services or Content. Any use of the (e) comply with terms of service of any Non-SFDC Applications with which Customer uses Services or Content. Any use of the
168 Services in breach of the foregoing by Customer or Users that in SFDC’s judgment threatens the security, integrity or availability Services in breach of the foregoing by Customer or Users that in SFDC’s judgment threatens the security, integrity or availability
169 of SFDC’s services, may result in SFDC’s immediate suspension of the Services, however SFDC will use commercially of SFDC’s services, may result in SFDC’s immediate suspension of the Services, however SFDC will use commercially
170 reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat
171 prior to any such suspension. prior to any such suspension.
172 3.4 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or 3.4 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or
173 use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an
174 Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or
175 Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-SFDC Application Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-SFDC Application
176 to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of
177 third-party privacy rights, (d) use a Service or Non-SFDC Application to store or transmit Malicious Code, (e) interfere with or third-party privacy rights, (d) use a Service or Non-SFDC Application to store or transmit Malicious Code, (e) interfere with or
178 disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access
179 to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or
180 Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of SFDC intellectual property Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of SFDC intellectual property
181 except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works
182 based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an
183 Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own
184 intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent
185 permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a
186 competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service,
187 (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of
188 any patent. any patent.
189 3.5 Removal of Content and Non-SFDC Applications. If Customer receives notice that Content or a Non-SFDC Application must 3.5 Removal of Content and Non-SFDC Applications. If Customer receives notice that Content or a Non-SFDC Application must
190 be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External
191 Facing Services Policy, Customer will promptly do so. If Customer does not take required action in accordance with the above, Facing Services Policy, Customer will promptly do so. If Customer does not take required action in accordance with the above,
192 or if in SFDC’s judgment continued violation is likely to reoccur, SFDC may disable the applicable Content, Service and/or Non- or if in SFDC’s judgment continued violation is likely to reoccur, SFDC may disable the applicable Content, Service and/or Non-
193 SFDC Application. If requested by SFDC, Customer shall confirm such deletion and discontinuance of use in writing and SFDC SFDC Application. If requested by SFDC, Customer shall confirm such deletion and discontinuance of use in writing and SFDC
194 shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as
195 applicable. In addition, if SFDC is required by any third party rights holder to remove Content, or receives information that applicable. In addition, if SFDC is required by any third party rights holder to remove Content, or receives information that
196 Content provided to Customer may violate applicable law or third-party rights, SFDC may discontinue Customer’s access to Content provided to Customer may violate applicable law or third-party rights, SFDC may discontinue Customer’s access to
197 Content through the Services. Content through the Services.
198 4. NON-SFDC PRODUCTS AND SERVICES 4. NON-SFDC PRODUCTS AND SERVICES
199 4.1 Non-SFDC Products and Services. SFDC or third parties may make available (for example, through a Marketplace or 4.1 Non-SFDC Products and Services. SFDC or third parties may make available (for example, through a Marketplace or
200 otherwise) third-party products or services, including, for example, Non-SFDC Applications and implementation and other otherwise) third-party products or services, including, for example, Non-SFDC Applications and implementation and other
201 consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and
202 any Non-SFDC provider, product or service is solely between Customer and the applicable Non-SFDC provider. SFDC does not any Non-SFDC provider, product or service is solely between Customer and the applicable Non-SFDC provider. SFDC does not
203 warrant or support Non-SFDC Applications or other Non-SFDC products or services, whether or not they are designated by warrant or support Non-SFDC Applications or other Non-SFDC products or services, whether or not they are designated by
204 SFDC as “certified” or otherwise, unless expressly provided otherwise in an Order Form. SFDC is not responsible for any SFDC as “certified” or otherwise, unless expressly provided otherwise in an Order Form. SFDC is not responsible for any
205 disclosure, modification or deletion of Customer Data resulting from access by such Non-SFDC Application or its provider. disclosure, modification or deletion of Customer Data resulting from access by such Non-SFDC Application or its provider.
206 4.2 Integration with Non-SFDC Applications. The Services may contain features designed to interoperate with Non-SFDC 4.2 Integration with Non-SFDC Applications. The Services may contain features designed to interoperate with Non-SFDC
207 Applications. SFDC cannot guarantee the continued availability of such Service features, and may cease providing them without Applications. SFDC cannot guarantee the continued availability of such Service features, and may cease providing them without
208 entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non- entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-
209 SFDC Application ceases to make the Non-SFDC Application available for interoperation with the corresponding Service features SFDC Application ceases to make the Non-SFDC Application available for interoperation with the corresponding Service features
210 in a manner acceptable to SFDC. in a manner acceptable to SFDC.
211 5. FEES AND PAYMENT 5. FEES AND PAYMENT
212 5.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees 5.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees
213 are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and
214 SFDC-MSA Nov 2018 Page 5 of 9 SFDC-MSA Nov 2018 Page 5 of 9
215 fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
216 5.2 Invoicing and Payment. Customer will provide SFDC with valid and updated credit card information, or with a valid purchase 5.2 Invoicing and Payment. Customer will provide SFDC with valid and updated credit card information, or with a valid purchase
217 order or alternative document reasonably acceptable to SFDC. If Customer provides credit card information to SFDC, Customer order or alternative document reasonably acceptable to SFDC. If Customer provides credit card information to SFDC, Customer
218 authorizes SFDC to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term authorizes SFDC to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term
219 and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be
220 made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If
221 the Order Form specifies that payment will be by a method other than a credit card, SFDC will invoice Customer in advance and the Order Form specifies that payment will be by a method other than a credit card, SFDC will invoice Customer in advance and
222 otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30
223 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to SFDC days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to SFDC
224 and notifying SFDC of any changes to such information. and notifying SFDC of any changes to such information.
225 5.3 Overdue Charges. If any invoiced amount is not received by SFDC by the due date, then without limiting SFDC’s rights or 5.3 Overdue Charges. If any invoiced amount is not received by SFDC by the due date, then without limiting SFDC’s rights or
226 remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum
227 rate permitted by law, whichever is lower, and/or (b) SFDC may condition future subscription renewals and Order Forms on rate permitted by law, whichever is lower, and/or (b) SFDC may condition future subscription renewals and Order Forms on
228 payment terms shorter than those specified in the “Invoicing and Payment” section below. payment terms shorter than those specified in the “Invoicing and Payment” section below.
229 5.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 5.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30
230 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized SFDC to charge to Customer’s days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized SFDC to charge to Customer’s
231 credit card), SFDC may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such credit card), SFDC may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such
232 agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid
233 in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, SFDC will in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, SFDC will
234 give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section
235 below for billing notices, before suspending services to Customer. below for billing notices, before suspending services to Customer.
236 5.5 Payment Disputes. SFDC will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if 5.5 Payment Disputes. SFDC will not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if
237 Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
238 5.6 Taxes. SFDC's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for 5.6 Taxes. SFDC's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for
239 example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).
240 Customer is responsible for paying all Taxes associated with its purchases hereunder. If SFDC has the legal obligation to pay or Customer is responsible for paying all Taxes associated with its purchases hereunder. If SFDC has the legal obligation to pay or
241 collect Taxes for which Customer is responsible under this section, SFDC will invoice Customer and Customer will pay that collect Taxes for which Customer is responsible under this section, SFDC will invoice Customer and Customer will pay that
242 amount unless Customer provides SFDC with a valid tax exemption certificate authorized by the appropriate taxing authority. amount unless Customer provides SFDC with a valid tax exemption certificate authorized by the appropriate taxing authority.
243 For clarity, SFDC is solely responsible for taxes assessable against it based on its income, property and employees. For clarity, SFDC is solely responsible for taxes assessable against it based on its income, property and employees.
244 6. PROPRIETARY RIGHTS AND LICENSES 6. PROPRIETARY RIGHTS AND LICENSES
245 6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, SFDC, its Affiliates, its licensors and Content 6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, SFDC, its Affiliates, its licensors and Content
246 Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual
247 property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
248 6.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable 6.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable
249 Order Forms, this Agreement and the Documentation. Order Forms, this Agreement and the Documentation.
250 6.3 License by Customer to SFDC. Customer grants SFDC, its Affiliates and applicable contractors a worldwide, limited-term 6.3 License by Customer to SFDC. Customer grants SFDC, its Affiliates and applicable contractors a worldwide, limited-term
251 license to host, copy, use, transmit, and display any Non-SFDC Applications and program code created by or for Customer using license to host, copy, use, transmit, and display any Non-SFDC Applications and program code created by or for Customer using
252 a Service or for use by Customer with the Services, and Customer Data, each as appropriate for SFDC to provide and ensure a Service or for use by Customer with the Services, and Customer Data, each as appropriate for SFDC to provide and ensure
253 proper operation of, the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non- proper operation of, the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-
254 SFDC Application with a Service, Customer grants SFDC permission to allow the Non-SFDC Application and its provider to SFDC Application with a Service, Customer grants SFDC permission to allow the Non-SFDC Application and its provider to
255 access Customer Data and information about Customer’s usage of the Non-SFDC Application as appropriate for the access Customer Data and information about Customer’s usage of the Non-SFDC Application as appropriate for the
256 interoperation of that Non-SFDC Application with the Service. Subject to the limited licenses granted herein, SFDC acquires no interoperation of that Non-SFDC Application with the Service. Subject to the limited licenses granted herein, SFDC acquires no
257 right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-SFDC Application right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-SFDC Application
258 or such program code. or such program code.
259 6.4 License by Customer to Use Feedback. Customer grants to SFDC and its Affiliates a worldwide, perpetual, irrevocable, royalty- 6.4 License by Customer to Use Feedback. Customer grants to SFDC and its Affiliates a worldwide, perpetual, irrevocable, royalty-
260 free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other
261 feedback provided by Customer or Users relating to the operation of SFDC’s or its Affiliates’ services. feedback provided by Customer or Users relating to the operation of SFDC’s or its Affiliates’ services.
262 6.5 Federal Government End Use Provisions. SFDC provides the Services, including related software and technology, for ultimate 6.5 Federal Government End Use Provisions. SFDC provides the Services, including related software and technology, for ultimate
263 federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR
264 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S.
265 Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial
266 computer software documentation, and technical data furnished in connection with the Services shall be as provided in this computer software documentation, and technical data furnished in connection with the Services shall be as provided in this
267 Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished
268 in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually
269 acceptable written addendum to this Agreement specifically granting those rights. acceptable written addendum to this Agreement specifically granting those rights.
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271 7. CONFIDENTIALITY 7. CONFIDENTIALITY
272 7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing 7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing
273 Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably
274 should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential
275 Information of Customer includes Customer Data; Confidential Information of SFDC includes the Services and Content, and the Information of Customer includes Customer Data; Confidential Information of SFDC includes the Services and Content, and the
276 terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes
277 business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed
278 by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to
279 the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its
280 disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third
281 party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
282 For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential
283 Information exchanged between the parties in connection with the evaluation of additional SFDC services. Information exchanged between the parties in connection with the evaluation of additional SFDC services.
284 7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential 7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential
285 Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential
286 information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for
287 any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit
288 access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need
289 that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party
290 containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose
291 the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without
292 the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or
293 accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality”
294 section. Notwithstanding the foregoing, SFDC may disclose the terms of this Agreement and any applicable Order Form to a section. Notwithstanding the foregoing, SFDC may disclose the terms of this Agreement and any applicable Order Form to a
295 subcontractor or Non-SFDC Application Provider to the extent necessary to perform SFDC’s obligations under this Agreement, subcontractor or Non-SFDC Application Provider to the extent necessary to perform SFDC’s obligations under this Agreement,
296 under terms of confidentiality materially as protective as set forth herein. under terms of confidentiality materially as protective as set forth herein.
297 7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent 7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent
298 compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to
299 the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the
300 disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a
301 civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing
302 Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential
303 Information. Information.
304 8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS 8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
305 8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so. 8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
306 8.2 SFDC Warranties. SFDC warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the 8.2 SFDC Warranties. SFDC warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the
307 Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the
308 security, confidentiality and integrity of Customer Data, (b) SFDC will not materially decrease the overall security of the Services, security, confidentiality and integrity of Customer Data, (b) SFDC will not materially decrease the overall security of the Services,
309 (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with
310 Non-SFDC Applications” section above, SFDC will not materially decrease the overall functionality of the Services. For any Non-SFDC Applications” section above, SFDC will not materially decrease the overall functionality of the Services. For any
311 breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment
312 upon Termination” sections below. upon Termination” sections below.
313 8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY 8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY
314 KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY
315 DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY,
316 FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY
317 APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE
318 OF ANY WARRANTY WHATSOEVER. OF ANY WARRANTY WHATSOEVER.
319 SFDC-MSA Nov 2018 Page 7 of 9 SFDC-MSA Nov 2018 Page 7 of 9
320 9. MUTUAL INDEMNIFICATION 9. MUTUAL INDEMNIFICATION
321 9.1 Indemnification by SFDC. SFDC will defend Customer against any claim, demand, suit or proceeding made or brought against 9.1 Indemnification by SFDC. SFDC will defend Customer against any claim, demand, suit or proceeding made or brought against
322 Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property
323 rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded
324 against Customer as a result of, or for amounts paid by Customer under a settlement approved by SFDC in writing of, a Claim against Customer as a result of, or for amounts paid by Customer under a settlement approved by SFDC in writing of, a Claim
325 Against Customer, provided Customer (a) promptly gives SFDC written notice of the Claim Against Customer, (b) gives SFDC Against Customer, provided Customer (a) promptly gives SFDC written notice of the Claim Against Customer, (b) gives SFDC
326 sole control of the defense and settlement of the Claim Against Customer (except that SFDC may not settle any Claim Against sole control of the defense and settlement of the Claim Against Customer (except that SFDC may not settle any Claim Against
327 Customer unless it unconditionally releases Customer of all liability), and (c) gives SFDC all reasonable assistance, at SFDC’s Customer unless it unconditionally releases Customer of all liability), and (c) gives SFDC all reasonable assistance, at SFDC’s
328 expense. If SFDC receives information about an infringement or misappropriation claim related to a Service, SFDC may in its expense. If SFDC receives information about an infringement or misappropriation claim related to a Service, SFDC may in its
329 discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate,
330 without breaching SFDC’s warranties under “SFDC Warranties” above, (ii) obtain a license for Customer’s continued use of that without breaching SFDC’s warranties under “SFDC Warranties” above, (ii) obtain a license for Customer’s continued use of that
331 Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written
332 notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above
333 defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the
334 basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any
335 part thereof with software, hardware, data, or processes not provided by SFDC, if the Services or use thereof would not infringe part thereof with software, hardware, data, or processes not provided by SFDC, if the Services or use thereof would not infringe
336 without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge;
337 or (4) a Claim against Customer arises from Content, a Non-SFDC Application or Customer’s breach of this Agreement, the or (4) a Claim against Customer arises from Content, a Non-SFDC Application or Customer’s breach of this Agreement, the
338 Documentation or applicable Order Forms. Documentation or applicable Order Forms.
339 9.2 Indemnification by Customer. Customer will defend SFDC and its Affiliates against any claim, demand, suit or proceeding 9.2 Indemnification by Customer. Customer will defend SFDC and its Affiliates against any claim, demand, suit or proceeding
340 made or brought against SFDC by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the made or brought against SFDC by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the
341 Services, (b) a Non-SFDC Application provided by Customer, or (c) the combination of a Non-SFDC Application provided by Services, (b) a Non-SFDC Application provided by Customer, or (c) the combination of a Non-SFDC Application provided by
342 Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from
343 Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order
344 Form (each a “Claim Against SFDC”), and will indemnify SFDC from any damages, attorney fees and costs finally awarded Form (each a “Claim Against SFDC”), and will indemnify SFDC from any damages, attorney fees and costs finally awarded
345 against SFDC as a result of, or for any amounts paid by SFDC under a settlement approved by Customer in writing of, a Claim against SFDC as a result of, or for any amounts paid by SFDC under a settlement approved by Customer in writing of, a Claim
346 Against SFDC, provided SFDC (a) promptly gives Customer written notice of the Claim Against SFDC, (b) gives Customer sole Against SFDC, provided SFDC (a) promptly gives Customer written notice of the Claim Against SFDC, (b) gives Customer sole
347 control of the defense and settlement of the Claim Against SFDC (except that Customer may not settle any Claim Against SFDC control of the defense and settlement of the Claim Against SFDC (except that Customer may not settle any Claim Against SFDC
348 unless it unconditionally releases SFDC of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. unless it unconditionally releases SFDC of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
349 The above defense and indemnification obligations do not apply if a Claim Against SFDC arises from SFDC’s breach of this The above defense and indemnification obligations do not apply if a Claim Against SFDC arises from SFDC’s breach of this
350 Agreement, the Documentation or applicable Order Forms. Agreement, the Documentation or applicable Order Forms.
351 9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified 9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified
352 party’s exclusive remedy against, the other party for any third party claim described in this section. party’s exclusive remedy against, the other party for any third party claim described in this section.
353 10. LIMITATION OF LIABILITY 10. LIMITATION OF LIABILITY
354 10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH 10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH
355 ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT
356 PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY
357 IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE
358 FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS
359 OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT
360 OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
361 10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE 10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE
362 ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES,
363 GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR
364 PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY
365 OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
366 DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
367 THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
368 11. TERM AND TERMINATION 11. TERM AND TERMINATION
369 11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions 11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions
370 hereunder have expired or have been terminated. hereunder have expired or have been terminated.
371 11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except 11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except
372 as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring
373 subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days
374 before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above
375 the applicable pricing in the prior term, unless SFDC provides Customer notice of different pricing at least 60 days prior to the the applicable pricing in the prior term, unless SFDC provides Customer notice of different pricing at least 60 days prior to the
376 SFDC-MSA Nov 2018 Page 8 of 9 SFDC-MSA Nov 2018 Page 8 of 9
377 applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced
378 subscriptions will be at SFDC’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to subscriptions will be at SFDC’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to
379 the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re- the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-
380 pricing at renewal without regard to the prior term’s per-unit pricing. pricing at renewal without regard to the prior term’s per-unit pricing.
381 11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material 11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material
382 breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition
383 in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
384 11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” 11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination”
385 section above, SFDC will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the section above, SFDC will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the
386 effective date of termination. If this Agreement is terminated by SFDC in accordance with the “Termination” section above, effective date of termination. If this Agreement is terminated by SFDC in accordance with the “Termination” section above,
387 Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable
388 law. In no event will termination relieve Customer of its obligation to pay any fees payable to SFDC for the period prior to the law. In no event will termination relieve Customer of its obligation to pay any fees payable to SFDC for the period prior to the
389 effective date of termination. effective date of termination.
390 11.5 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” 11.5 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,”
391 “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,”
392 “Removal of Content and Non-SFDC Applications,” “Surviving Provisions” and “General Provisions” will survive any “Removal of Content and Non-SFDC Applications,” “Surviving Provisions” and “General Provisions” will survive any
393 termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or
394 expiration of this Agreement for so long as SFDC retains possession of Customer Data. expiration of this Agreement for so long as SFDC retains possession of Customer Data.
395 12. GENERAL PROVISIONS 12. GENERAL PROVISIONS
396 12.1 Export Compliance. The Services, Content, other SFDC technology, and derivatives thereof may be subject to export laws and 12.1 Export Compliance. The Services, Content, other SFDC technology, and derivatives thereof may be subject to export laws and
397 regulations of the United States and other jurisdictions. SFDC and Customer each represents that it is not named on any U.S. regulations of the United States and other jurisdictions. SFDC and Customer each represents that it is not named on any U.S.
398 government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed
399 country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation. country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
400 12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of 12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of
401 value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment
402 provided in the ordinary course of business do not violate the above restriction. provided in the ordinary course of business do not violate the above restriction.
403 12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between SFDC and Customer regarding 12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between SFDC and Customer regarding
404 Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations,
405 written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order
406 or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency
407 among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the
408 Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction
409 of any provision of this Agreement. of any provision of this Agreement.
410 12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, 12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise,
411 joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment
412 of all compensation owed to its employees, as well as all employment-related taxes. of all compensation owed to its employees, as well as all employment-related taxes.
413 12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. 12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
414 12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. 12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
415 12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision 12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision
416 will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
417 12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, 12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise,
418 without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this
419 Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a
420 merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a
421 party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the
422 other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, SFDC other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, SFDC
423 will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective
424 date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective
425 successors and permitted assigns. successors and permitted assigns.
426 12.9 SFDC Contracting Entity, Notices, Governing Law, and Venue. The SFDC entity entering into this Agreement, the address 12.9 SFDC Contracting Entity, Notices, Governing Law, and Venue. The SFDC entity entering into this Agreement, the address
427 to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or
428 in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where
429 Customer is domiciled. Customer is domiciled.
430 SFDC-MSA Nov 2018 Page 9 of 9 SFDC-MSA Nov 2018 Page 9 of 9
431 If Customer is domiciled in: The SFDC entity entering If Customer is domiciled in: The SFDC entity entering
432 into this Agreement is: into this Agreement is:
433 Notices should be addressed Notices should be addressed
434 to: to:
435 Governing law Governing law
436 is: is:
437 Courts with Courts with
438 exclusive exclusive
439 jurisdiction are: jurisdiction are:
440 The United States of The United States of
441 America, Mexico or a America, Mexico or a
442 Country in Central or South Country in Central or South
443 America or the Caribbean America or the Caribbean
444 salesforce.com, inc.,a salesforce.com, inc.,a
445 Delaware corporation Delaware corporation
446 Salesforce Tower, 415 Salesforce Tower, 415
447 Mission Street, 3rd Floor, San Mission Street, 3rd Floor, San
448 Francisco, California, 94105, Francisco, California, 94105,
449 U.S.A., attn: VP, Worldwide U.S.A., attn: VP, Worldwide
450 Sales Operations, with a copy Sales Operations, with a copy
451 to attn: General Counsel. to attn: General Counsel.
452 California and California and
453 controlling controlling
454 United States United States
455 federal law federal law
456 San Francisco, San Francisco,
457 California, U.S.A. California, U.S.A.
458 Canada salesforce.com Canada Canada salesforce.com Canada
459 Corporation, a Nova Corporation, a Nova
460 Scotia corporation Scotia corporation
461 Salesforce Tower, 415 Salesforce Tower, 415
462 Mission Street, 3rd Floor, San Mission Street, 3rd Floor, San
463 Francisco, California, 94105, Francisco, California, 94105,
464 U.S.A., attn: VP, Worldwide U.S.A., attn: VP, Worldwide
465 Sales Operations, with a copy Sales Operations, with a copy
466 to attn: General Counsel. to attn: General Counsel.
467 Ontario and Ontario and
468 controlling controlling
469 Canadian Canadian
470 federal law federal law
471 Toronto, Ontario, Toronto, Ontario,
472 Canada Canada
473 A Country in Europe, the A Country in Europe, the
474 Middle East or Africa Middle East or Africa
475 salesforce.com EMEA salesforce.com EMEA
476 Limited, a limited liability Limited, a limited liability
477 company incorporated in company incorporated in
478 England England
479 Salesforce.com Sarl, Route Salesforce.com Sarl, Route
480 de la Longeraie 9, Morges, de la Longeraie 9, Morges,
481 1110, Switzerland, attn: 1110, Switzerland, attn:
482 Director, EMEA Sales Director, EMEA Sales
483 Operations, with a copy to Operations, with a copy to
484 attn: General Counsel. attn: General Counsel.
485 England England England England
486 Japan Kabushiki Kaisha Japan Kabushiki Kaisha
487 Salesforce.com, a Japan Salesforce.com, a Japan
488 corporation corporation
489 JP Tower 12F, 2-7-2 JP Tower 12F, 2-7-2
490 Marunouchi, Chiyoda-ku, Marunouchi, Chiyoda-ku,
491 Tokyo 100-7012, Japan, attn: Tokyo 100-7012, Japan, attn:
492 Senior Director, Japan Sales Senior Director, Japan Sales
493 Operations, with a copy to Operations, with a copy to
494 attn: General Counsel. attn: General Counsel.
495 Japan Tokyo, Japan Japan Tokyo, Japan
496 A Country in Asia or the A Country in Asia or the
497 Pacific region, other than Pacific region, other than
498 Japan, Australia or New Japan, Australia or New
499 Zealand Zealand
500 Salesforce.com Singapore Salesforce.com Singapore
501 Pte Ltd, a Singapore Pte Ltd, a Singapore
502 private limited company private limited company
503 5 Temasek Boulevard #13- 5 Temasek Boulevard #13-
504 01, Suntec Tower 5, 01, Suntec Tower 5,
505 Singapore, 038985, attn: Singapore, 038985, attn:
506 Director, APAC Sales Director, APAC Sales
507 Operations, with a copy to Operations, with a copy to
508 attn: General Counsel. attn: General Counsel.
509 Singapore Singapore Singapore Singapore
510 Australia or New Zealand SFDC Australia Pty Ltd 201 Sussex Street, Darling Australia or New Zealand SFDC Australia Pty Ltd 201 Sussex Street, Darling
511 Park Tower 3, Level 12, Park Tower 3, Level 12,
512 Sydney NSW 2000, attn: Sydney NSW 2000, attn:
513 Senior Director, Finance with Senior Director, Finance with
514 a copy to attn: General a copy to attn: General
515 Counsel Counsel
516 New South New South
517 Wales, Wales,
518 Australia Australia
519 New South Wales, New South Wales,
520 Australia Australia
521
522 12.10 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in 12.10 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in
523 writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of
524 termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending
525 by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other
526 notices to Customer will be addressed to the relevant Services system administrator designated by Customer. notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
527 12.11 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to 12.11 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to
528 choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above. choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
529 12.12 No Agency. For the avoidance of doubt, SFDC is entering into this Agreement as principal and not as agent for any other 12.12 No Agency. For the avoidance of doubt, SFDC is entering into this Agreement as principal and not as agent for any other
530 salesforce.com company. Subject to any permitted Assignment under the “Assignment” section below, the obligations owed by salesforce.com company. Subject to any permitted Assignment under the “Assignment” section below, the obligations owed by
531 SFDC under this Agreement shall be owed to Customer solely by SFDC and the obligations owed by Customer under this SFDC under this Agreement shall be owed to Customer solely by SFDC and the obligations owed by Customer under this
532 Agreement shall be owed solely to SFDC. Agreement shall be owed solely to SFDC.