MASTER SUBSCRIPTION AGREEMENT
Please read this agreement carefully before using this service.
By using the service or clicking “Agree” customer is agreeing to be bound by this agreement. If you are agreeing to this agreement on behalf of or for the benefit of your employer, then you represent and warrant that you have the necessary authority to agree to this agreement on your employer’s behalf.
This agreement is between Samanage Ltd. (Samanage), and the customer agreeing to these terms (Customer).
- SOFTWARE SERVICE. This agreement provides Customer access and usage of proprietary software as a service as specified on an order. Samanage will provide this functionality on the salesforce.com service as described in Schedule 1, mobile software application, or other Samanage approved interface under the terms below (collectively, Service).
- USE OF SERVICE.
- Customer Owned Data. All data uploaded by Customer and collected by the Licensed Software (defined below) remains the sole property of Customer, as between Samanage and Customer (Customer Data). Customer grants Samanage the right to use and store the Customer Data solely for purposes of Samanage performing the Services under this agreement. Customer hereby warrants to Samanage that it either owns or licenses the Customer Data it provides, has the authority to grant Samanage such usage rights and that there are no additional approvals required for granting such usage rights.
- Contractor Access and Usage. Customer may authorize its employees, service providers, and other third parties to access the Services with user credentials, which access must be for the sole benefit of Customer and in compliance with this agreement. Customer is responsible for such representative’s compliance with this agreement.
- Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Samanage promptly of any such unauthorized access; and (iv) may use the Service only in accordance with applicable law.
- Samanage Support. Samanage provides customer support for the Service under the terms of Samanage’s Customer Support Policy (Support), which is located at https://www.samanage.com/support/customer-support-policy/.
- Trial. If Customer has registered for a trial use of the Service, Customer may access the Service for trial purposes for the time period specified by Samanage.
- Warranty. Samanage warrants that (i) it will not materially decrease the overall security of the Services during a subscription term, (ii) it will not materially decrease the functionality of the Services during a subscription term, and (iii) the Services will not introduce Malicious Code into Customers systems. Malicious Code means any code, files, scripts or programs designed to do harm (e.g. viruses, worms, time bombs or trojan horses).
- GENERAL DISCLAIMER. OTHER THAN THE WARRANTIES PROVIDED IN SECTION 3(A) ABOVE, THE SERVICE IS PROVIDED AS IS AND SAMANAGE DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT USE OF SERVICE MAY NOT BE UNINTERRUPTED OR ERROR FREE. WHILE SAMANAGE TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, SAMANAGE DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED.
- THIRD PARTY SERVICE DISCLAIMER. CERTAIN SUPPORTED THIRD-PARTY WEB SERVICES OR TECHNOLOGY THAT THE SERVICE INTEGRATES WITH MAY BE MADE AVAILABLE WITHIN THE SERVICE, IF CUSTOMER HAS AN ACCOUNT AND CONTRACT WITH THE APPLICABLE THIRD PARTY (THIRD PARTY SERVICES). SAMANAGE HAS NO LIABILITY REGARDING THOSE THIRD PARTY SERVICES OR TECHNOLOGY, AND CUSTOMER’S CONTRACT WITH THAT THIRD-PARTY SOLELY GOVERNS CUSTOMER’S ACCESS AND USAGE OF THAT THIRD PARTY SERVICE OR TECHNOLOGY.
- MUTUAL CONFIDENTIALITY AND DATA SECURITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Samanage’s Confidential Information includes without limitation the Service and Licensed Software (including without limitation the Service user interface design and layout), and Customer’s Confidential Information includes without limitation the Customer Data.
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information, as can be demonstrated. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to enable Discloser to seek a protective order.
- Security Measures. In order to protect Customer’s Confidential Information, Samanage will (i) implement and maintain all reasonable security measures appropriate to the nature of the Confidential Information including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Confidential Information; (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures; (iii) designate an employee or employees to coordinate implementation and maintenance of its security measures; and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks.
- Notice of Data Breach. If Samanage knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, Samanage will alert Customer of any data breach within two business days, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. Samanage will give highest priority to immediately correcting any data breach and devote such resources as may be required to accomplish that goal. Samanage will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted Customer may provide notice to any or all parties affected by any data breach. In such case, Samanage will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties.
- PAYMENT. Within 30 days of receipt of an invoice, or in a different timeframe if specified on the order, Customer must pay all fees agreed to on the order. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. If Customer does not pay the amounts due within 10 days of the due date, Samanage may suspend or terminate the Service, or both.
- SAMANAGE PROPERTY.
- Reservation of Rights. The software, scripts, graphics, form, text, content of text, workflow processes, user interface, and designs of the Service as well as the Licensed Software, and any other technologies provided by Samanage as part of the Service are the property of Samanage and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Samanage. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Licensed Software. Samanage reserves all rights unless expressly granted in this agreement. Samanage owns and may use during and after the Term all anonymized and aggregate data within the Service, only at a statistical level, regarding the performance of features of the Service (for example without limitation, average time to resolution of an incident) for purposes of enhancing the Service, technical support and other business purposes. The way this data is captured by Samanage will not allow for re-identification.
- Restrictions. Customer may not (i) sell, resell, rent or lease or otherwise exploited, reproduce, distribute the Service or use it in a service provider capacity, unless otherwise provided under an order; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service or the Licensed Software; or (vi) access the Service or use the Licensed Software to build a competing service or product, or copy any feature, function or graphic for competitive purposes.
- Licensed Software. All Samanage downloadable software provided as part of the Service (Licensed Software) is licensed as follows: Samanage grants Customer a non-exclusive, nontransferable license, during the term of each Service order, to internally download, reproduce and operate the Licensed Software on computers and networked appliances within Customer’s network environment, for use solely with the Service.
- LIABILITY LIMIT.
- EXCLUSION OF INDIRECT DAMAGES. NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, COSTS OF DELAY; LOSS OR UNAUTHORIZED ACCESS OF DATA OR INFORMATION; AND LOST PROFITS OR ANTICIPATED COST SAVINGS.
- LIMIT ON LIABILITY. SAMANAGE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT WITHIN THE 12 MONTHS PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
- TERM AND TERMINATION.
- Term. This agreement continues until all orders expire or are terminated for material breach, as provided below. All orders automatically renew from year to year until terminated by either party upon at least 30 days electronic or written notice prior to the renewal date. Samanage will provide written or electronic notice of all renewals, and send an invoice at least 30 days in advance of the renewal date.
- Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement with immediate effect, if the breach has not been cured within a 30 day notice/cure period.
- Data Rights Upon Termination. See the SFDC terms in Schedule 1 below regarding return of data.
- Return or Destroy Samanage Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Samanage any amount owed to Samanage, and uninstall and destroy the Licensed Software and all other property of Samanage. Customer will confirm its compliance with this destruction or return requirement in writing upon request by Samanage.
- Suspension of Service for Violations of Law. Samanage may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law or any provision of this Agreement. Samanage will attempt to provide prior notice.
- GOVERNING LAW AND FORUM.
- US Customer. For Customers located in the United States, this agreement is governed by the laws of the State of North Carolina, without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the state and federal courts for Wake County, NC. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- International Customers. For Customers located outside the United States, this agreement is governed by the laws of North Carolina, without regard to conflict of laws principles. Any dispute arising out of or related to this agreement must be exclusively determined by binding arbitration in Wake County, NC, US, under the then current commercial or international rules of The International Centre For Dispute Resolution. The decisions of the arbitrators may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive relief in any court of competent jurisdiction. The prevailing party in any arbitration or litigation is entitled to recover its attorneys’ fees and costs from the other party.
- DEFENSE OF THIRD PARTY CLAIMS. Samanage will defend or settle any third-party claims against Customer that alleges that the Service, not related to Customer Data, used in accordance with this agreement violates a copyright, patent, trademark or other intellectual property right, if Customer: promptly notifies Samanage of the claim in writing; cooperates with Samanage in the defense; and allows Samanage to solely control the defense or settlement of the claim: Costs, Settlement and Court Damages. Samanage will pay the infringement claim defense costs Samanage incurs as part of defending Customer as specified above, Samanage negotiated settlement amounts and court awarded damages. Samanage will only settle a claim if it contains a full release with no admission of liability or financial obligation on the part of Customer. Remedies. If such a claim appears likely, then Samanage may modify the Service, procure the necessary rights, or replace the Service with the functional equivalent. If Samanage determines that none of these are reasonably available, then Samanage may terminate the Service and provide a refund of any prepaid and unused amounts. Exclusions. Samanage has no obligation for any claim arising from: Customer Data; a combination of the Service with other technology, aspects or processes where the infringement would not occur but for the combination; or technology, aspects or processes not provided by Samanage. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND SAMANAGE’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
- Entire Agreement and Changes. This agreement and each order constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. Neither party is relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it or agree to it as part of an online electronic process, and no waiver is effective unless the party waiving the right signs a waiver in writing.
- No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond their reasonable control, including without limitation, force majeure events.
- No Additional Terms. Samanage rejects additional or conflicting terms of any Customer form or purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- Survival of Terms and no CISG. Any terms that by their nature survive termination or expiration of this agreement, will survive. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Export Control. Each party must comply with the export control laws of the United States and other applicable countries.
- Salesforce Terms. The Salesforce.com terms on Schedule 1 are incorporated into this agreement for all purposes.
Schedule 1 – SFDC Service Agreement
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Customer Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means Samanage.
“Reseller Application” means the online software service identified in the order.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means, collectively, salesforce.com, inc. and its affiliates.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
- Use of Platform.
- Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
- If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/” for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
- Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and in connection with the Reseller Application, You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
- You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Customer Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
- You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
- You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
- Third-Party Providers. Reseller and other third-party providers, some of which may be listed on pages within SFDC’s website and including providers of Third-Party Applications, offer products and services related to the Platform, the SFDC Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers’ use of the Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform and/or the SFDC Service such as by exchanging data with the Platform and/or the SFDC Service or by offering additional functionality within the user interface of the Platform and/or the SFDC Service through use of the Platform and/or SFDC Service’s application programming interface. SFDC does not warrant any such thirdparty providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by SFDC as “certified,” “validated” or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such thirdparty provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this SFDC Service Agreement.
- Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
- Access by Reseller. To the extent Reseller serves as the administrator of the Reseller Application for You, You acknowledge that your use of the Reseller Application may be monitored by Reseller and Reseller may access Customer Data submitted to the SFDC Service or Reseller Application. By agreeing to this SFDC Service Agreement, you are consenting to such monitoring and access by Reseller.
- Return of Customer Data. You have thirty (30) days from the date of termination your Reseller Application subscription term in which to request a copy of Customer Data, which will be made available to You in a .csv format. Any modifications to such Customer Data made by the Reseller Application outside of the Platform (if any) will not be captured in Customer Data as returned and the return of any such modified data shall be the responsibility of Reseller.
- Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
- Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
- Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
- Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
- Subscriptions Non-Cancelable. Subscriptions for the Platform are non-cancelable during a subscription term, unless otherwise specified in Your agreement with Reseller.
- No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Further Contact. SFDC may contact You regarding new Platform and SFDC Service features and offerings.
- Third Party Beneficiary. SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
- Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You, in addition to any agreement you may enter into directly with Reseller, provided that if a conflict arises, this SFDC Agreement shall prevail. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC.