BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE SIGNUP PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR APPLICATION TO SALESFORCE.COM'S PARTNER PROGRAM (THE "PROGRAM"). IN THE EVENT SALESFORCE.COM ACCEPTS YOUR APPLICATION TO THE PROGRAM, YOU AGREE THAT THE FOLLOWING TERMS AND CONDISTION SHALL APPLY.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT PARTICIPATE IN THE PROGRAM. THE "EFFECTIVE DATE" OF THIS AGREEMENT SHALL BE THE DATE OF YOUR ACCEPTANCE.
This salesforce.com Partner Program Agreement (“Agreement”) includes the terms and definitions set out below, the salesforce.com Partner Program (the “Program”) policies referenced in this Agreement, and any additional written terms posted on the Program web site related to the benefits you receive from salesforce.com under this Agreement. This Agreement is not effective unless and until salesforce.com notifies you in writing (including via email) that you have been accepted by salesforce.com into the Program. If accepted, salesforce.com will notify you. If accepted into the Program, you will be designated by salesforce.com into a Program Type. Where this Agreement refers to Program Benefits or services offered by salesforce.com to you if applicable to your Program Type, such Program Benefits or services apply to you only if salesforce.com has notified you of your acceptance into the applicable Program Type. As referred to in this Agreement , "Salesforce.com" a means salesforce.com, inc., a Delaware corporation, having its principal place of business at The Landmark @ One Market, Suite 300, San Francisco, California 94105.
“Application” means the salesforce.com online software platform and customer relationship management service, including certain offline components, identified as part of the Application by salesforce.com, as may be provided by salesforce.com to you under this Agreement, but does not include AppExchange applications. Depending on the Program Type you qualify for, licenses to the Application may be provided to you for development, demonstration, training and/or support purposes as provided below. To the extent that your Program Type includes Application licenses, such licenses may also include certain related Application documentation and updates. The Application does not include support, implementation, customization, training, consulting or other professional services, or third party products or services (other than those third party products and services salesforce.com makes generally available to its customers as part or the Application at no additional charge).
"AppExchange" means the online directory of on-demand applications that work with the Application, located at http://www.appexchange.com or at any successor websites. Depending on the Program Type you qualify for, you may be provided with certain products and/or services related to AppExchange.
“End User” means a third party that is licensed to use the Application for its own business operations or is targeted as an Opportunity for such licensing.
"First Year Net Revenue" means, with respect to a Qualified Purchase, the subscription fees owed by the referred salesforce.com customer by reason of such purchase (net of any discounts, taxes payable and subsequent refunds not due to incorrect invoicing or a contract breach by salesforce.com) over the 12-month period beginning on the subscription start date of the purchase. First Year Net Revenue does not include fees for support. implementation, customization, training, consulting or other professional services, or fees for third-party products or services.
"Opportunity" means, in salesforce.com's reasonable determination: (i) a referral of a new salesforce.com End User customer, or a new subsidiary, division or other distinct business unit of a pre-existing salesforce.com End User customer; or (ii) a purchase of additional Application subscriptions (as opposed to a renewal of pre-existing subscriptions), or an upgrade in the customer’s edition of the Application, in either case for a minimum of a one year subscription term by a pre-existing salesforce.com End User customer, which purchase resulted from Partner’s specific sales efforts related to such additional purchase; provided, that the order must be executed within 6 months of the referral, and the Opportunity cannot be (a) an existing salesforce.com opportunity then currently, or during the prior sixty (60) days, in salesforce.com's active sales process, or (b) an affiliate of Partner which controls, is controlled by, or is under common control with, Partner.
“Order Form” means the salesforce.com form of ordering document for one or more types of Program Benefits.
“Program Benefits” means the materials and/or services that may be provided to you under this Agreement, depending on your Program Type.
“Program Policies” means the aggregate of policies and documentation describing the Program, Program Types, Program Benefits, and other policies governing your participation in the Program, as set forth in this Agreement and on the Program Site.
“Program Site” means the Program website located at http://partner.salesforce.com/partners/.
“Program Type” means a sub-category of the Program that has a particular scope and particular set of Program Benefits, as set forth in this Agreement and the Program Policies.
"Qualified Purchase" means, in salesforce.com's reasonable determination, a purchase of five or more annual (or longer) Application subscriptions that is fully executed and closed within six months of the corresponding Opportunity referral.
Your application for membership to the Program consists of this Agreement together with a completed application packet prepared by you. The application packet consists of an online application form completed by you in which you have specified which Program Type you wish to be considered for, together with applicable supporting documentation as specified in the application form. If accepted, you will be notified of the Program Type for which you have qualified. Your membership in the Program is subject to (1) your timely payment of the membership fees, if any, and (2) your continued adherence to the Program Policies for the applicable Program Type. Fees are subject to change at salesforce.com’s discretion. Payment obligations are non-cancelable and fees paid are non-refundable.
Each wholly and majority owned subsidiary that desires to be included in your membership in the Program must complete its own application for membership. Following processing of a wholly or majority owned subsidiary’s application by salesforce.com, such subsidiary shall be notified as to which of the Program Types such subsidiary has qualified. Each subsidiary shall receive the Program Benefits associated with the Program Type into which such subsidiary has qualified.
Following Partner’s notification of acceptance by salesforce.com into the Program, provided that Partner continuously meets the Program entry and qualification criteria as published by salesforce.com on the Program Site, Partner shall receive during the term of this Agreement all of the Benefits specified for the applicable Program Type in the Program Policies published by salesforce.com. These Benefits are subject to change in salesforce.com’s discretion; however they will not be materially decreased during a term for which Partner has paid a membership fee. The Program policies, incorporated in this Agreement, are subject to change in salesforce.com’s discretion and may contain additional terms. Notwithstanding anything to the contrary in this Agreement, if Partner fails to continuously meet any applicable qualification criteria, salesforce.com may in its sole discretion reclassify Partner to a different Program Type, in addition to any other remedies available to salesforce.com.
If accepted into the Program, salesforce.com will pay you a referral fee for each Opportunity you submit to salesforce.com that results in a Qualified Purchase.
(a) Referral Fees
Unless otherwise specified in the Program Policies for your Program Type, for each
Opportunity that you submit to salesforce.com that results in a Qualified Purchase, salesforce.com
will pay you a referral fee , in an amount as specified in the
Program Policies as applicable
to your Program Type based upon the First Year Net Revenue associated with such Qualified
Purchase.
(b) Payments
Salesforce.com will be solely responsible for billing customers of the Service and collecting
payment. Salesforce.com will pay fees owed to you for any Qualified Purchase within sixty (60) days
after the end of the Quarter in which the referred customer’s Application service start date
commenced pursuant to that Qualified Purchase. Salesforce.com will provide a summary report with
each payment showing how the payment was calculated. If either party determines an error was made
in the calculation of payment, each party agrees to work diligently and in good faith to resolve
the error and to ensure proper payment is made.
If for any reason a payment is made to you in error, or in the event a referred customer fails to make a required payment of first-year subscription fees to salesforce.com for a Qualified Purchase within 60 days after the payment due date, or if the applicable customer agreement is terminated before the expiration of its stated term, salesforce.com shall be entitled to a refund of the corresponding payments made to you. Salesforce.com may, at its sole discretion, offset such refundable amounts against fees owed to you by salesforce.com hereunder, or invoice you for such refundable amounts. Any such invoiced amounts are due and payable by you within 30 days after the invoice date. If you refund fees to salesforce.com because of a referred customer’s nonpayment, and salesforce.com later collects the corresponding fees from such customer, salesforce.com will repay you the applicable fee for such Qualified Purchase less a deduction to cover one-half of salesforce.com’s collection and administrative costs, such deduction not to exceed one-half of the fee to which you would otherwise have been entitled. Salesforce.com's right to a refund with respect to any Qualified Purchase shall expire 90 days after the one-year anniversary of the subscription start date of that Qualified Purchase.
(c) Opportunity Submission
Upon completion and submission of an enrollment application and salesforce.com's acceptance
of Partner’s participation in the Program, Partner will receive via email a link and log-in
credentials (i.e. username and password) to salesforce.com’s online deal registration portal (“
Partner Portal”). Partner must complete and submit deal (lead) registrations online for each SFDC
sales Opportunity. SFDC then will qualify the Opportunity and notify Partner via email of its
approval or rejection of such Opportunity. If the parties exchange information regarding
Opportunities through the Partner Portal, both parties agree to use the information therein solely
for purposes related to this Agreement. In submitting personal data regarding an opportunity,
Partner is responsible for complying with all applicable laws governing Partner’s collection,
storage, processing, use and transfer of such information. Partner authorizes SFDC to process such
data as reasonably required to exercise its rights and perform its obligations under this
Agreement. SFDC will process and use personal data in accordance with the instructions received
from Partner, and will not process or use such data in a manner different from that necessary to
carry out SFDC’s obligations under this Agreement, provided however, that SFDC may be required to
provide personally identifiable information to third parties to comply with legally mandated
reporting, disclosure, or other legal process requirements. As the data provider, Partner warrants
that it has provided all appropriate notices to the data subjects and has obtained all appropriate
consents to transfer the data to SFDC and allow its processing according to the terms of this
Agreement.
(1) Application Training
Salesforce.com will conduct one initial training session on the Application via online
conferencing for you, the timing to be mutually determined by the parties. Your sales
representatives or other appropriate personnel will be trained on the general value proposition and
positioning of the Application and the process for submitting leads to salesforce.com.
Your sales representatives generating leads for the Application must be reasonably capable of effectively delivering the salesforce.com value proposition and must be generally knowledgeable about the Application and its interface, advantages and high-level functionality.
You agree that your sales representatives and other personnel engaged in marketing and generating leads for the Application will use reasonable efforts to participate in the basic online training offered for free by salesforce.com to its users generally. As salesforce.com upgrades the Application, your sales representatives and other personnel may be asked to undergo further training to become proficient in generating leads based on the Application’s new features and functions. You and your personnel agree to make reasonable, good faith efforts to participate in such further training.
You agree to use reasonable efforts to advise salesforce.com of any demonstrations required to market the Application to prospective customers, especially those with a sales force or customer service group of greater than twenty (20) people.
(2) Technical Training
If applicable to your Program Type, salesforce.com will offer you technical training in a
form determined by salesforce.com and as described in the Program Policies. Such training may, in
salesforce.com’s discretion, be at additional cost to the Program membership fees. If any
additional fees apply, they will be described in the Program Policies.
If applicable to your Program Type, then upon salesforce.com providing you with log-in credentials you will be granted a non-exclusive, non-transferable limited license for the applicable number of licenses to use the Application and/or salesforce.com development tools for (depending on your Program Type) demonstration, development and/or testing purposes as follows in this Section 5 and as set forth in the Program Policies, to: (a) demonstrate the Application to potential end users solely in connection with your Program membership; (b) integrate the Application Programs with your application program or service, and (c) provide training for the Application and the value added package to your employees. In no event shall you (i) license, sublicense, sell, resell, transfer, assign, distribute or (except as provided in this Agreement) otherwise commercially exploit or make available to any third party the Application in any way; (ii) modify or make derivative works based upon the Application; (iii) create Internet "links" to the Application or "frame" or "mirror" it on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Application for the purpose of (a) building a competitive product or service, (b) building a product using similar ideas, features, functions or graphics of the Application, or (c) copying any ideas, features, functions or graphics of the Application. User licenses cannot be shared or used by more than one individual user but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer need to use the Application under this Agreement. Salesforce.com shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Application any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Application.
If applicable to your Program Type, you will be provided with products and services designed to assist you in developing and marketing your application on the AppExchange. Such products and services will be as described in the Program Policies.
As a member of the Program, you are eligible to receive technical support from salesforce.com for an additional cost above any applicable Program membership fee. If applicable to your Program Type, you may receive a limited number of annual technical support cases at no additional charge. The technical support program offerings are all as described in the Program Policies and will be provided under salesforce.com’s technical support policies in effect at the time the services are provided. For purposes of this Agreement, technical support does not include support for third party programs or services. Salesforce.com’s technical support policies are subject to change at salesforce.com’s discretion. The current version of the technical support policies are available athttps://www.salesforce.com/services-training/customer-support/integration-support/index.jsp.
Your use of the salesforce.com marketing programs, marketing materials, and marketing tools, which are further defined in the Program Policies (“Marketing Services”) shall be subject to the terms below, any terms posted on the Program Site, and any logo and advertising use guidelines set forth at http://www.salesforce.com/assets/pdf/misc/SFDC_StyleGuide1206.pdf. Salesforce.com may change the logo and advertising guidelines at any time, and, upon reasonable notice from salesforce.com, you shall promptly modify your use of the Marketing Services to conform to any such changed guidelines.
If applicable to your Program Type salesforce.com grants you a non-exclusive, nontransferable, limited license to use those portions of the Marketing Services described in the Program Policies as applicable to such Program Type, solely for the purpose of creating, executing, and monitoring marketing campaigns related to salesforce.com products and services. You may allow third parties to access the Marketing Services for the purpose of creating, executing, and monitoring marketing campaigns related to salesforce.com products and services on your behalf, provided that you ensure that all such use is in accordance with this Agreement. You agree to be responsible for any misuse of the Marketing Services by you or any third party using the Marketing Services on your behalf and you agree to use the Marketing Services at your own risk.
The Marketing Services contain or may contain in the future information, data, text, software, music, sound, photographs, graphics, video, and other materials that may be protected by copyrights, trademarks, trade secrets or other proprietary rights (collectively “Marketing Services Content”). Except as expressly authorized by salesforce.com or advertisers, sponsors, or other third parties owning such Marketing Services Content, you agree not to copy, distribute, modify, duplicate, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Marketing Services Content. All Marketing Services Content is provided to you AS-IS, without warranty of any kind. Salesforce.com does not guarantee the accuracy, quality or usefulness of any Marketing Services Content or any Marketing Services.
You shall cooperate with salesforce.com to allow for review of your use of the Marketing Services and compliance with salesforce.com’s quality standards. If salesforce.com, in its sole discretion, determines that your use of the Marketing Services is not in compliance with this Agreement, you shall promptly modify or discontinue your use as directed by salesforce.com.
While you may opt out of receiving information from salesforce.com related to various programs and services, as a member of the Program in any Program Type you will need to know about membership and participation in the Program, new related services, salesforce.com products, offerings, conferences, and training. As such, your participation in the Program will serve as an opt-in to receive salesforce.com marketing that may be deemed relevant to salesforce.com partners. You will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any persons who are signed up to the Program on your behalf.
From time to time, during the term of this Agreement, salesforce.com may provide you with access to additional or different salesforce.com marketing materials, software or services related to the Program as identified in the Program Policies. Your use of the additional Program Benefits shall be subject to the terms of this Agreement, those terms set out in the Program Policies, and any additional written terms posted on the Program Site related to the additional Program Benefits.
Subject to your acceptance by salesforce.com for membership into the Program, each party hereby grants to the other a worldwide, nonexclusive, nontransferable, non-sublicenseable, royalty-free license to use, in your case, "salesforce.com" and the associated logo and, in salesforce.com's case, your company name and the associated logo (collectively, "Marks") solely in connection with each party's rights, duties and obligations under this Agreement.
Any use of Marks shall be in accordance with the granting party's reasonable trademark usage policies, with proper markings and legends, and subject to granting party's prior written approval. The granting party may withdraw any approval of any use of its Marks at any time in its sole discretion.
During the period of use, the licensed party shall reasonably cooperate with the granting party in facilitating the granting party's monitoring and control of the nature and quality of products and services bearing the granting party's Marks, and shall supply the granting party with specimens of the licensed party's use of the granting party's Marks upon request. If the granting party notifies the licensed party that the licensed party's use of the granting party's Marks is not in compliance with the granting party's trademark policies or is otherwise deficient, then the licensed party shall promptly comply with such policies or otherwise as directed by the granting party. Neither party shall make any express or implied statement or suggestion, or use the other party's Marks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the other party or its business, products or services.
Each party acknowledges that the other party's Marks are and shall remain Marks of the other party. Neither party shall gain any right, title or interest with respect to the other party's Marks by use thereof, and all rights or goodwill associated with the other party's Marks shall inure to the benefit of the other party.
Salesforce.com retains all ownership and intellectual property rights to anything developed by salesforce.com and/or delivered to you by salesforce.com under this Agreement, including without limitation the Application and all Marketing Services (collectively the “salesforce.com Property”) .
You may not:
• Remove or modify any program markings or any notice of salesforce.com’s or its licensors proprietary rights;
• Make the Application, any materials delivered hereunder, or any materials resulting from the services available in any manner to any third party for use in the third party’s business operations, other than as expressly permitted in the Program Policies for your Program Type;
• Cause or permit reverse engineering (unless required by law for interoperability), disassembly, decompilation of the Application;
• Use the salesforce.com Property in a manner that misrepresents your relationship with salesforce.com or is otherwise misleading or that reflects negatively on salesforce.com;
• Use or duplicate the salesforce.com Property provided to you for any purpose other than as specified in the Program Policies or in this Agreement or make the salesforce.com Property available to unauthorized third parties; or
• Use the salesforce.com Property for your own internal business operations, or use the salesforce.com Property or make the salesforce.com Property available in any manner to any third party for use in the third party’s business operations or for any other commercial or production use, other than as expressly permitted in the Program Policies for your Program Type.
SALESFORCE.COM DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE APPLICATION, WHICH IS PROVIDED SOLELY IN ACCORDANCE WITH THE TERMS OF A SUBSCRIPTION AGREEMENT BETWEEN SALESFORCE.COM AND AN END USER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT WILL SALESFORCE.COM BE LIABLE TO YOU OR TO ANY OTHER INDIVIDUAL OR ENTITY AFILIATED WITH YOU FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE SERVICE.
In all matters relating to this Agreement you will act as an independent contractor. The relationship between salesforce.com and you is that of licensor/licensee. This Agreement does not create a partnership (notwithstanding any use of the term “partner” by the parties, which if used is meant only to convey a spirit of cooperation between the parties), joint venture, agency, employee/employer, lobbyist/lobbyist employer relationship, or franchisee/franchisor relationship between the parties. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this Agreement shall be construed to limit either party’s right to independently develop or distribute products that are functionally similar to the other party’s products, so long as proprietary information of the other party is not included in such products or used to create such products.
This Agreement shall remain in effect for 1 year from the date of notification to you of your acceptance as a member of the Program. If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, including but not limited to your failure to pay the membership fees as required herein, the other party may terminate this Agreement. If salesforce.com ends this Agreement as specified in this paragraph, you must pay within 30 days all amounts which have accrued prior to such end. Except for nonpayment of fees or if the breach is of a nature which cannot be corrected, we each agree to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in breach of this Agreement, you may not use the salesforce.com Property.
Upon termination or expiration of this Agreement, you shall cease to be a member of the Program and all of your rights to receive the Program Benefits detailed in this Agreement and the Program Policies and to use the salesforce.com Property shall cease. Upon termination or expiration of this Agreement you shall cease using, and shall return or destroy, all copies of the applicable salesforce.com Property and shall return, destroy, or refrain from using any information regarding marketing or sales opportunities provided by salesforce.com.
This Agreement shall automatically renew at salesforce.com’s standard terms and any applicable fees in effect at such time unless a party gives the other party written notice at least 30 days prior to its expiration. Provisions that survive termination or expiration include those relating to limitation of liability, payment, and others which by their nature are intended to survive.
Upon dissolution of your business, the filing of a voluntary or involuntary petition in bankruptcy by you or on your behalf, or termination or expiration of this Agreement, you agree to return or destroy and refrain from using any information regarding marketing and/or sales opportunities that has been provided to you.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Neither party shall use or disclose any Confidential Information (defined below) of the other party for any purpose outside the scope of this Agreement, except with the other party's prior written consent. Each party shall protect the other party's Confidential Information in a manner similar to its own Confidential Information of like nature (but in no event using less than reasonable care). In the event of an actual or threatened breach of a party's confidentiality obligations, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the breaching party that other remedies may be inadequate.
"Confidential Information" means all proprietary or confidential material or information disclosed orally or in writing by the disclosing party to the receiving party, including the terms and conditions of this Agreement, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, that Confidential Information shall not include any information or material that: (i) was or becomes generally known to the public without the receiving party's breach of any obligation owed to the disclosing party; (ii) was or subsequently is independently developed by the receiving party without reference to Confidential Information of the disclosing party; (iii) was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to the disclosing party; or (iv) is required by law to be disclosed (in which case the receiving party shall give the disclosing party reasonable prior notice of such compelled disclosure and reasonable assistance, at disclosing party's expense, should disclosing party wish to contest the disclosure or seek a protective order).
You agree that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in an URL or referenced policy), together with any applicable additional written terms posted on the Program Site related to the salesforce.com Property or any applicable Order Form, are the complete Agreement for the salesforce.com Property and your membership in the Program, and that this Agreement supersedes all prior or contemporaneous Agreements or representations, written or oral, regarding the salesforce.com Property and your membership in the Program. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. It is expressly agreed that the terms of this Agreement and any Order Form with salesforce.com shall supersede the terms in any purchase order or other non-salesforce.com ordering document and no terms included in any such purchase order or other non-salesforce.com ordering document shall apply to the Program or to any products and/or services ordered. This Agreement and any Order Form with salesforce.com may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Program Site by authorized representatives of you and salesforce.com. Any notice required under this Agreement shall be provided to the other party in writing, in the case of salesforce.com by first class mail to the Landmark @ 1 Market, Suite 300, San Francisco, CA 94105, “Attn: Partner Program Manager”, with a copy addressed to “Attn: General Counsel”.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SALESFORCE.COM’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SALESFORCE.COM PARTNER PROGRAM AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE ANNUAL MEMBERSHIP FEES YOU PAID SALESFORCE.COM FOR THE YEAR DURING WHICH A CLAIM IS MADE.
You agree to indemnify salesforce.com for any loss, liability, damages, cost or expense (including attorneys’ fees) arising out of any claims made against salesforce.com arising out of (1) your use of the Marketing Services where such claim relates to your activities, products or services, or (2) your breach of this Agreement or the Program Policies. Notwithstanding the above, you shall have no obligation to indemnify salesforce.com with respect to a claim of trademark or copyright infringement based upon your use of the Marketing Services as expressly permitted under this Agreement.
If your Program Type includes Application Demonstration Licenses, then the following terms in this Section 19 also apply to you.
(a) Indemnification by salesforce.com.
Salesforce.com shall defend, indemnify and hold you harmless against any loss, damage or
costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or
proceedings ("Claims") made or brought against you by a third party alleging that the use of the
Application as contemplated hereunder infringes the intellectual property rights of a third party;
provided, that you (a) promptly gives written notice of the Claim to salesforce.com; (b) gives
salesforce.com sole control of the defense and settlement of the Claim (provided that
salesforce.com may not settle or defend any Claim unless it unconditionally releases you of all
liability); and (c) provides to salesforce.com, at salesforce.com's cost, all reasonable
assistance.
(b) Indemnification by you.
Subject to this Agreement, you shall defend, indemnify and hold salesforce.com harmless
against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection
with Claims made or brought against salesforce.com by a third party alleging that any data entered
by you into the Application, or your use of the Application in violation of this Agreement or the
Program Policies, infringes the intellectual property rights of, or has otherwise harmed, a third
party; provided, that salesforce.com (a) promptly gives written notice of the Claim to you; (b)
gives you sole control of the defense and settlement of the Claim (provided that you may not settle
or defend any Claim unless it unconditionally releases salesforce.com of all liability); and (c)
provides to you, at your cost, all reasonable assistance.
This Agreement shall be governed by California without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. The Uniform Computer Information Transactions Act does not apply to this Agreement.
If you have a dispute with salesforce.com, or if you become subject to insolvency or other legal proceedings, you will promptly send written notice to: Salesforce.com, Inc., The Landmark @ 1 Market, Suite 300, California, 94105, Attention: General Counsel.
This Agreement may not be assigned by you without the prior written approval of salesforce.com but may be assigned without your consent by salesforce.com to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of salesforce.com directly or indirectly owning or controlling 50% or more of you shall entitle salesforce.com to terminate this Agreement for cause immediately upon written notice.
Except for actions for nonpayment or breach of salesforce.com’s proprietary or intellectual property rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
You confirm that prior to entering into this Agreement you have read the Program policies on the Program Site and agree to the terms and conditions set out in those policies. You agree that you will visit the Program Site on a regular basis so that you are aware of any changes salesforce.com may make to those policies from time to time.
You warrant that you have the authority to bind your wholly and majority owned subsidiaries to the terms of this Agreement and further warrant that you shall be responsible for a breach of such terms by your wholly and majority owned subsidiaries.
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for services provided.
You agree to comply with all applicable United States and foreign export laws and regulations applicable to your use of the services or the materials provided to you under the Program. You agree that no data, information, program and/or materials resulting from such services or materials will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.