Cloud Coach

Terms & Conditions – Cloud Coach Master Subscription and Services Agreement

PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. THIS AGREEMENT IS MADE BY AND BETWEEN YOU (OR, IF YOU ARE PURCHASING A SUBSCRIPTION OR USING AN APPLICATION ON BEHALF OF YOUR COMPANY OR ORGANIZATION, YOUR COMPANY OR ORGANIZATION) (“YOU” OR “SUBSCRIBER”) AND CLOUD COACH INTERNATIONAL, LTD. (“CLOUD COACH”). BY SIGNING AN APPLICABLE ORDER FORM (AS DEFINED BELOW), CLICKING “I ACCEPT”, DOWNLOADING, ACCESSING OR USING ANY APPLICATION (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE USING AN APPLICATION OR PURCHASING A SUBSCRIPTION ON BEHALF OF YOUR COMPANY OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY OR ORGANIZATION TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE ANY APPLICATION.

In consideration of the mutual promises and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the parties agree as follows:

    1. General
      Cloud Coach provides enterprise-level project management, project portfolio management, professional services automation and related software-as-a-service (SaaS) subscriptions for access within the SFDC Platform (as defined below). Access to each Cloud Coach offering is granted pursuant to the: (a) terms and conditions of this Agreement; (b) the business terms in an applicable Order Form (as defined below); (c) the salesforce.com (SFDC) Service Agreement; and (d) any valid and current Statement of Work (SOW), where applicable. In case of conflict between the foregoing, the SFDC Agreement shall control this Agreement and the Order Form, and the Order Form shall control this Agreement and any relevant SOW. Any conflict between a Subscriber Purchase Order and Cloud Coach Order Form/Agreement shall be resolved in favor of the Cloud Coach Order Form/Agreement.
  1. Definitions

    (a) “Additional Services” means any additional services to be provided by Cloud Coach as specified in an Order Form.

    (b) “AppExchange” means the online directory of on-demand applications that work with the SFDC Platform,” located at http://www.appexchange.com or at any successor websites.

    (c) “Application” means any application owned by Cloud Coach that is available for Subscription whether or not bearing the Cloud Coach name as identified on the App Exchange or in an applicable Order Form.

    (d) “Authorized User(s) or User(s)” means persons affiliated with Subscriber as employees, consultants, onsite contractors or temporary employees to whom Subscriber grants access to the Services, or whose user record is accessed through Subscriber’s use of the Services.

    (e) “Clean Org” means a Salesforce Org that has the Cloud Coach-managed packages installed but no configuration of any kind (including but not limited to custom fields, workflow processes, external views, approval processes, process builder, apex code and triggers, visualforce).

    (f) “Material,” with respect to a particular matter (e.g., a breach, amendment), shall mean that the matter is shown to affect adversely the ability of the other party to perform its obligations hereunder to such a degree that a reasonable person in the management of his or her own affairs would be more likely than not to decline to enter into this Agreement in view of the matter in question.

    (g) “Materials” means any deliverables or other work product created by Cloud Coach as part of Additional Services.

    (h) “Order Form” means an order form executed by the parties (following the expiration of a stated Trial Period, if applicable) concerning the Services, Additional Services or access to any Application identified in such Order Form. The Order Form will specify the applicable fees, Subscription Term, number of Authorized Users and Additional Services, if any, to be provided by Cloud Coach.

    (i) “Personal Data” means any information given to Cloud Coach by Subscriber relating to an identified or identifiable natural person who can be directly or indirectly identified in particular by reference to an identifier

    (j) “Reseller” means a company authorized to procure, accept and deliver to Subscriber an Order Form for reselling Cloud Coach Services and accept payment from Subscriber pursuant to the Order Form.

    (k) “Services” means the services to be provided by Cloud Coach pursuant to an Order Form or free Application via the AppExchange.

    (l) “SFDC Platform” means the web-based technology platform provided by Salesforce that includes a user interface, operating system, customization and integration capabilities for Salesforce.com’s on-demand customer relationship management service.

    (m) “Subscriber” means the individual, company, organization, business entity or group purchasing the Services, persons accessing an Application pursuant to a stated Trial Period, and persons legally accessing a free Application via download on the AppExchange.

    (n) “Subscriber Data” means any and all information entered or inputted by Subscriber and its Authorized Users in the course of accessing and utilizing the Services.

    (o) “Subscription” means Subscriber’s right to access the Services pursuant to an Order Form.

    (p) “Subscription Term” means the period of time specified in an Order Form (or default time period for free Applications) during which Subscriber may access the Applications and Materials covered by the applicable Order Form. Unless otherwise indicated on the Order Form, the Term begins on the Date of Execution of the Order Form, and in the case of free Applications, the date of installation of the free Application.

    (q) “Trial Period” means the specified period of time during which Subscriber and any Authorized User has rightful access to any Application prior to the execution of an Order Form.

  2. Fees for Paid Applications

    (a) Fees. As consideration for the rights granted and Services provided by Cloud Coach pursuant to an Order Form, Subscriber shall pay Cloud Coach the fees set forth in the applicable Order Form. Payment shall be in USD unless otherwise designated in the Order Form and in accordance with the terms set forth therein.

    (b) Late Payment. Any payment not received from Subscriber when due shall incur interest at the rate of twelve percent (12%) per annum or the maximum rate permitted by law, whichever is less. Net payment terms are 30 days unless indicated otherwise on the Order Form.  Any payments not received within the payment terms may be sent to a collection agency to secure payment. Subscriber shall be responsible for all costs and fees associated in the collection of monies due and owing, including reasonable attorney fees.

    (c) Reseller. If Subscriber has purchased the Services through a Reseller, payment is deemed received pursuant to this Section 3 as of the date it is received by Cloud Coach, not the Reseller. If timely payment is not received by Cloud Coach, the Subscriber is subject to the suspension and termination provisions in Section 6(b)(3) herein, regardless whether payment was made to the Reseller.

    (d) Taxes. Any and all amounts payable hereunder are exclusive of any goods and services, value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Subscriber is solely responsible for paying any applicable Taxes. If Cloud Coach has the legal obligation to collect any Taxes, Subscriber shall pay Cloud Coach same as indicated on the invoice by Cloud Coach.

  3. Subscription Services       

    (a) Subscription. Subject to Subscriber’s compliance with the terms and conditions of this Agreement, Cloud Coach shall give Subscriber non-exclusive, non-transferable, access to any free Application and the Applications and Materials identified in an applicable Order Form during the Subscription Term specified in the Order Form (or default period for a free Application).

    (b) Restrictions.

    (1) Use of any Application and Materials is limited to the total number of Authorized Users specified in the applicable Order Form. Except as expressly permitted under this Agreement, Subscriber shall not itself or permit any other party to: (a) translate, download, reproduce, modify, adapt or create derivative works based upon any Application or Materials; (b) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework for any Application or Materials; (c) access any Application or Materials for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to any Application or Materials; (d) use any Application or Materials in any way that does not comply with applicable laws and regulations; (e) use any Application or Materials in any way that could damage the reputation of Cloud Coach or the goodwill or other rights associated with any Application or Materials; (f) modify or remove any copyright or other proprietary notices on the Application or Materials, or (g) use any part of Salesforce CRM functionality (Leads, Campaigns, Opportunities, Cases, etc.) without a subscription from Salesforce for use of that functionality. The External Resource object is for managing of physical equipment only.

    (2) Cloud Coach Enterprise and Cloud Coach Ultimate subscriptions include Salesforce platform access to Cloud Coach objects only. Subscriber is solely responsible to acquire the proper Salesforce platform subscription required to legally access Cloud Coach Professional and/or Cloud Coach Milestones and Cloud Coach is not responsible for Subscriber’s failure to do so.

    (3) Subscriber is prohibited (itself or through a third party), from configuring or customizing Cloud Coach Applications to build functionality that is competitive with another Cloud Coach Application.

    (c) Usage Statistics. Cloud Coach may collect and analyze anonymous usage statistics (e.g., number of records and page views), but not the contents of any Subscriber Data, relating to use of Applications for purposes of benchmarking, troubleshooting or improving the performance and functionality of Applications.

    (d) Browsers Supported. Cloud Coach supports only the most recent public release and the immediately preceding version of current browsers supported by Salesforce Lightning.

    (e) New Version Supported. Cloud Coach supports only the most current version of its Applications. New versions of Applications are released by Cloud Coach via automatic push upgrades to its Subscribers at large free of charge; provided, however, that custom configurations may make automated upgrade impossible and may require the engagement of Additional Services from Cloud Coach at Subscriber’s expense to migrate to new versions. With Salesforce moving its business toward Salesforce Lightning, Cloud Coach cannot guarantee continued support of Classic functionality from Salesforce and is therefore unable to offer support for Cloud Coach in the Salesforce Classic interface after December 31, 2019.

    (f) Other Support. Cloud Coach offers a basic success support plan, which is made available free of charge to Subscriber and includes bug fixes replicable in a Clean Org only (with no custom configuration). Support related to anything not replicable in a Clean Org requires an additional fee.

    (g) Trademark License. Cloud Coach may use the names, logos and trademarks of Subscriber to publicize the existence of the business relationship established by this Agreement.

  4. Intellectual Property Rights, Confidentiality and Privacy

    (a) Subscriber acknowledges and agrees that Cloud Coach and its licensors own all rights, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Application and Materials. Cloud Coach acknowledges and agrees that Subscriber and its licensors own all rights, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the contents of Subscriber Data entered by Subscriber and its Authorized Users in Applications.

    (b) To the extent either party has access to the confidential information of any other party, each party agrees to treat such information with at least the same degree of care it would use to protect its own confidential information. Any disclosure (mandatory, inadvertent or otherwise) of confidential information must be immediately disclosed to the party owning such information.Subscriber agrees that the pricing and other terms given to Subscriber are considered confidential information under this Agreement and shall not be disclosed to any third party.

    (c) Cloud Coach’s treatment of Personal Data is governed by its Privacy Policy.

    (d) Subscriber Data that is subject to the terms of the General Data Protection Regulation (“GDPR”) (eff. 25 May 2018) is governed by the Salesforce Data Processing Addendum, which Subscriber can download and execute here.

  5. Term and Termination

    (a) Term. The term of this Agreement shall continue in effect until the expiration or termination of all existing Subscription Terms as defined in Order Forms, Renewals, Additional Services, and as otherwise agreed in writing and signed by the parties, or as earlier terminated pursuant to Section 6(b). The default Term for a free Application is one (1) year from the date of installation.

    (b) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows:

    1. Material Breach. Either party may terminate this Agreement in the event of a material breach by the other party that remains uncured thirty (30) days after the non-breaching party gives the breaching party written notice of such breach; provided, however, that termination may be limited by the non-breaching party, at its sole discretion, to the applicable Order Form under which a material breach arose; or
    2. Insolvency. Either party may terminate this Agreement in the event that the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business; or
    3. Suspension. In the event that Subscriber fails to make any payment when due under this Agreement, Cloud Coach may immediately suspend Subscriber’s access to the application and suspend the Services. If any such payment remains unpaid more than thirty (30) days after it becomes due, then Cloud Coach may immediately terminate this agreement. Upon such termination, Subscriber shall owe the full balance of total contracted amounts for the remaining Subscription Term and Subscriber shall not be entitled to any refund or credit for any period of suspension. Any suspension or termination by Cloud Coach pursuant to this section 6(b)(3) shall be without prejudice to any other rights or remedies available to Cloud Coach under this Agreement.
    4. Notice. Any written notice given pursuant to Section 6(b)(1) herein must be delivered directly to Cloud Coach and not through a Reseller to be considered valid notice under this Agreement.
  6. Representations and Warranties

    Cloud Coach and Subscriber each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement has been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of the party or conflict with any condition of any contract to which it is a party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon the party; and (e) it possesses all governmental approvals and licenses necessary to perform its obligations under this Agreement.

  7. Indemnification/Exclusive IP Remedy

    (a) Cloud Coach Indemnification. Cloud Coach agrees that Subscriber shall have no liability and Cloud Coach shall indemnify, defend and hold Subscriber harmless against any loss, damage, cost, liability and expense arising from any third-party action or claim (collectively, “Losses”) attributable to: (1) infringement of such third party’s copyright based upon Subscriber’s use of any Application or Materials in conformity with the terms and conditions of this Agreement in all material respects. In the event that any Application or Materials becomes the subject of a claim of infringement or Cloud Coach reasonably determines that any Application or Materials is likely to become the subject of such a claim, then, as Subscriber’s exclusive remedy under this Agreement, Cloud Coach may, at its option: (i) procure for Subscriber a subscription as necessary for Subscriber to exercise the rights granted by Cloud Coach under this Agreement; (ii) modify or replace the Application or Materials to avoid infringement, provided that the Application and Materials as modified or replaced retain materially the same functionality; or (iii) terminate the applicable Order Form for such Application or Materials without further obligation to Subscriber; provided, however, that Subscriber shall be entitled to a pro rata refund of the fees paid for any unused Subscription Term.

    (b) Subscriber Indemnification. Subscriber agrees that Cloud Coach shall have no liability and Subscriber shall indemnify, defend and hold Cloud Coach harmless against any Losses arising from any: (1) infringement of a third party’s copyright attributable to any materials provided by Subscriber or any Authorized User or (2) gross negligence or willful misconduct of Subscriber or any Authorized User.

    (c) Procedure. The indemnified party shall: (1) give the indemnifying party prompt written notice of any Loss or threat of Loss; (2) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any Loss or threat of Loss; and (3) give the indemnifying party sole and complete control over the defense or settlement of any Loss or threat of Loss; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

  8. Disclaimer of Warranties

    THE APPLICATION AND MATERIALS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” CLOUD COACH, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL GUARANTEES, WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) CONSUMER GUARANTEES RELATING TO, AND IMPLIED WARRANTIES OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DUE CARE AND SKILL; AND (B) ANY CONSUMER GUARANTEE AND ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE APPLICATION OR MATERIALS, OR THAT SUBSCRIBER’S USE OF THE APPLICATION OR MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET SUBSCRIBER’S REQUIREMENTS.

  9. Limitation of Damages

    IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS (INCLUDING LOSS OF DATA) OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE APPLICATION OR MATERIALS, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.

    Cloud Coach undertakes no responsibility for, and disclaims all liability arising from, any defects or failures in any communication lines, the internet or internet service provider, Subscriber’s computer hardware or software, the SFDC platform or any other product or service used to access the application. Subscriber acknowledges and agrees that Cloud Coach is not responsible for the accuracy of any Subscriber Data contained in the application, and Cloud Coach shall not be liable for any losses or damages resulting from reliance on any such Subscriber Data under any circumstances. Cloud Coach shall not be liable for any losses or damages resulting from Subscriber’s grant of access to Cloud Coach to its production org via Subscriber, its Authorized Users, or any other mechanism. Cloud Coach has no access to or obligation to retain any Subscriber Data at any time. Retention of Subscriber Data is governed solely by the terms of the SFDC Service Agreement between Subscriber and SFDC. Cloud Coach shall not be liable for any losses or damages resulting from Subscriber’s denial of access to the Application(s) or Services, which access is denied pursuant to Subscriber’s direct subscription agreement(s) with SFDC. Cloud Coach reserves the right to make changes to product tier functionality at any time with or without notice to Subscriber and disclaims all liability to Subscriber arising therefrom.

  10. Limitation of Liability

    EXCEPT FOR THE PARTIES’ DUTY TO INDEMNIFY THE OTHER AS DESCRIBED ABOVE AND IN ADDITION TO SUBSCRIBER’S DUTY TO PAY ALL FEES DUE, THE TOTAL LIABILITY OF EITHER PARTY FOR ANY CLAIM UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID BY SUBSCRIBER TO CLOUD COACH UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.

  11. General

    (a) Notice. Notices given under this Agreement shall be in writing and may be delivered by hand or sent by internationally-recognized courier service, e-mail or fax to the physical address, e-mail address or fax number for each party set forth in the most current Order Form. Any such notice shall be deemed successfully given: (1) if delivered personally, at the time of delivery; (2) in the case of an internationally-recognized courier service, the date of delivery confirmation; or (3) in the case of e-mail or fax, at the time of successful transmission.

    (b) Assignment. Subscriber may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Cloud Coach; provided, however, that no consent shall be required with respect to an assignment as part of any transfer by merger, acquisition, stock transfer or other consolidation of a Subscriber with another entity, or sale of all or substantially all of Subscriber’s assets. The terms of this Agreement shall be binding upon Subscriber with respect to an assignment by Cloud Coach made pursuant to a transfer, merger, acquisition, stock transfer or other consolidation of Cloud Coach with another entity, or sale of all or substantially all of Cloud Coach’s assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

    (c) Entire Agreement. This Agreement, including all Order Forms, valid and current SOW, annexes, exhibits and schedules, and the attached SFDC Service Agreement (Enterprise and Ultimate Subscribers Only), contains the final and entire agreement of the parties on the subject matter herein and supersedes all previous and contemporaneous oral or written negotiations, email correspondence, or agreements regarding such subject matter, including any oral or written terms contained in Cloud Coach proposals and/or demos during the sales process and Requests for Proposals submitted pursuant to Subscriber’s internal buying processes.

    (d) Amendment. This Agreement may be amended only by Cloud Coach. Cloud Coach shall notify Subscriber of any Material amendments in writing. 

    (e) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

    (f) Non-Solicitation of Employees. Subscriber shall not, for a period of twenty-four (24) months following the termination of this Agreement, without the prior written approval of Cloud Coach, hire or enter into a contract with any employee of Cloud Coach to provide services to Subscriber or, directly or indirectly, induce or attempt to induce or otherwise counsel, discuss, advise or encourage any employee of Cloud Coach to leave or otherwise terminate such person’s relationship with Cloud Coach.

    (g) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Colorado, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

    (h) Dispute Resolution. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in the United States District Court for the District of Colorado in Denver or, if federal jurisdiction is not available, in any state court of competent jurisdiction in Denver, Colorado. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.

    (i) Non-Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

    (j) Survival. The provisions of this Agreement that should by their nature survive termination of this Agreement shall survive such termination, including, but not limited to, sections, 3(b), 3(d), 4(b), 4(c), 5, 7, 8, 9, 10, 11 and 12.

    (k) SFDC Service Agreement. Subscriber’s execution of this Agreement constitutes acceptance of the SFDC Service Agreement below (Enterprise and Ultimate Users Only)

    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.

    “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 Cloud Coach.

    ““Reseller Application” means any Cloud Coach Application as defined in the Cloud Coach Master Subscription and Services Agreement.

    “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 salesforce.com.

    “Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.

    “Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).

    “You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.

    “Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.

    1. Use of Platform.

    (a) 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.

    (b) 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.

    (c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.

    (d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.

    (e) 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.

    (f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.

    Third-Party Providers. Reseller and other third-party providers, some of which may be listed on pages within SFDC’s website and including providers of Third-Party Applications, offer products and services related to the Platform, the SFDC Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers’ use of the Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform and/or the SFDC Service such as by exchanging data with the Platform and/or the SFDC Service or by offering additional functionality within the user interface of the Platform and/or the SFDC Service through use of the Platform and/or SFDC Service’s application programming interface. SFDC does not warrant any such third-party providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by SFDC as “certified,” “validated” or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this SFDC Service Agreement.

    2. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service.  SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.

    3. Access by Reseller. To the extent Reseller serves as the administrator of the Reseller Application for You, You acknowledge that your use of the Reseller Application may be monitored by Reseller and Reseller may access Your Data submitted to the SFDC Service or Reseller Application. By agreeing to this SFDC Service Agreement, you are consenting to such monitoring and access by Reseller.

    4. Return of Your Data. You have thirty (30) days from the date of termination your Reseller Application subscription term in which to request a copy of Your Data, which will be made available to You in a .csv format. Any modifications to such Your Data made by the Reseller Application outside of the Platform (if any) will not be captured in Your Data as returned and the return of any such modified data shall be the responsibility of Reseller. 

    5. 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.

    6. 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.

    7. 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.

    8. 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.

    9. Subscriptions Non-Cancelable. Subscriptions for the Platform are non-cancelable during a subscription term, unless otherwise specified in Your agreement with Reseller.

    10. 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.

    11. 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.

    12. Further Contact. SFDC may contact You regarding new Platform and SFDC Service features and offerings.

    13. 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. 

    14. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC.

    15. Existing MSSA. If the Your Company is installing the resellers application into an existing SFDC org, then the Your current MSSA terms with Salesforce takes precedence over the SFDC Service Agreement, part of this agreement.

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