LITIFY LLC SERVICES AGREEMENT
This is a binding agreement (“Services Agreement”) by and between Litify LLC (“Litify” or “Licensor”), and you (“Licensee”), including your Affiliates (together the “Parties”, and each a “Party”). 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 and its Affiliates to these terms and conditions, in which case the terms “you” and “your” shall refer to such entity and its Affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the Product(s) and Services unless an authorized representative has accepted it on your behalf.
By clicking the button marked “I agree” or signing at the end of this document, or by signing or agreeing to an Order Form, you signify your intent to be bound by the terms and conditions of this Services Agreement as of the Effective Date.
Capitalized terms not defined elsewhere in this Agreement shall have the following meanings:
“Affiliate” means, with respect to any entity or person, any other entity or person that now or in the future directly or indirectly controls, is controlled by, or is under common control with such entity or person or its successor entity, but only for so long as such control exists.
“Base Product” means each of the hosted and client software applications and services made available to Licensee hereunder by Licensor, or identified on any Order Form(s), as such exist as of, or are entered into after, the Effective Date. “Base Product” does not include any product, application or service provided by a third party under a separate agreement between such party and Licensee.
“Confidential Information” means Licensee Confidential Information and Licensor Confidential Information.
"Documentation" means all programming, system, database and user documentation relating to the Product(s) and Services, as set forth on any Order Form(s), including without limitation descriptions of the functional, operational and design characteristics of the Product(s).
“Effective Date” means the date on which you accept this Agreement.
“Fees” means the payments for the Product(s) and Services at the rates set forth in any Order Form(s) that may be entered into by Licensor and Licensee.
“Force Majeure” means events beyond Licensor’s control, including but not limited to natural disasters, power failures, internet service provider failure, denial of service attacks, strikes, riots, acts of vandalism, lockouts, calamities, acts or omissions of civil or military authority, war, terrorism, or acts of God.
"Licensee" shall mean Licensee and its Affiliates.
“Licensee Confidential Information” has the meaning set forth in Section 8.
“Licensee Data” means all data and information provided by or on behalf of Licensee, including without limitation that which Licensee or any Authorized Persons (as defined in Section 2.7 of this Agreement) inputs or uploads to the Web Site.
“Licensor Confidential Information” has the meaning set forth in Section 8.
“Licensor Content” means any content created by Licensor and made available to Licensee and/or Authorized Persons as part of the Services.
“Order Form” means any Order Form(s) that may be entered into by Licensor and Licensee, and any amendment(s) thereto, setting forth the products, services, fees, and other details of the transaction that is the subject of this Agreement. The Order Form(s), if any, is incorporated by reference into this Agreement.
“Personal Data” means all information regulated by any applicable domestic or foreign privacy, data protection, data security, breach notification, or the like laws, rules, or regulations.
“Product” means each of the Base Product(s) together with the Licensor Content, and all updates thereto and all Documentation related thereto.
“Renewal Term” means each period the Term of this Agreement is extended as provided in this Agreement, any Order Form(s) or as otherwise agreed to in writing by the Parties.
“Services” means the hosting and operation of the Product(s) and necessary system software and utilities on Licensor’s host computer system, including without limitation providing Licensor Content and Licensee Data available to Authorized Person(s) via the Web Site and approved personal devices; and any other services described in any Order Form(s) or which Licensor provides to Licensee pursuant to this Agreement. “Services” does not include any product, application or service provided by a third party under a separate agreement between such party and Licensee.
“Term” means the Initial Term specified on any Order Form(s) and all Renewal Terms, subject to termination in accordance with this Agreement. If no Order Form is entered into, the Term shall be as set forth in Section 4.1.
“Web Site” means the Internet site(s) and mobile application(s) operated by Licensor to provide access to the Product(s) and Services.
2. PRODUCTS AND SERVICES
2.1. Provision of the Product(s) and Services Generally. Licensor hereby agrees to provide the Product(s) and Services to Licensee during the Term, as more fully described herein; provided, however, that with respect to any initial Order Form for a paying customer, Licensor shall not provision any licenses to such customer until such customer has paid its initial invoice(s) in full (notwithstanding the foregoing, such Licensee shall be obligated to pay for its licenses as of the commencement of the Term). Licensee may not access the Product(s) or Services if Licensee is a direct competitor of Licensor, except with Licensor’s prior written consent. In addition, Licensee may not access the Product(s) or Services for purposes of monitoring their availability, performance or functionality, or for any benchmarking or competitive purposes.
2.2. License to Product(s) and Services. Subject to the terms hereof, Licensor hereby grants to Licensee a non-exclusive, worldwide non-transferable, non-sublicensable license to access and use the Product(s) (including without limitation Licensor Content) and Services during the Term. Subject to the terms hereof, Licensor will use commercially reasonable efforts to make the Product(s) and Services available 24 hours per day, 7 days per week, except for schedule maintenance or other planned downtime and/or Force Majeure.
2.3. License to Licensor Content. Pursuant to the terms hereof, Licensor hereby grants Licensee during the Term a non-exclusive, worldwide, non-transferable, non-sublicensable license to make, distribute, use, and combine with other materials, copies of the Licensor Content by or on behalf of Licensee by Authorized Persons.
2.4. Title to Product(s). As between the parties, Licensor shall retain title to the Product(s) and does not convey any ownership therein to Licensee. Licensee shall not remove, and shall not reproduce on any copies, any copyright or other proprietary notices included by Licensor.
2.5. Licensee Proprietary Rights. Licensee Data is and shall remain the sole and exclusive property of Licensee, including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary rights thereto, and Licensee hereby grants Licensor a limited worldwide nonexclusive license to use Licensee’s name and logo for informational and marketing purposes in connection with the Product(s) and Services. Additionally, all right, title and interest to any data relating to Licensee’s business created by Licensee shall remain the property of Licensee if supplied to Licensor by Licensee or uploaded into the Product(s) by Licensee. In addition, Licensor shall have the right to use aggregated and anonymized data for the purposes of case study presentation, other marketing purposes, to improve the services and/or to improve the product. Upon Licensee’s request at any time during the Term, and within thirty (30) days following expiration or termination of this Agreement by either Party for any reason, Licensor agrees to make available Licensee’s Data to Licensee for export or download. After such thirty (30)-day period, Licensor shall have no obligation to maintain or provide any Licensee Data, and may thereafter delete or destroy all Licensee Data in Licensor’s system or otherwise in Licensor’s possession or control.
2.6. Licensor Proprietary Rights. The Product(s) and the Licensor Content are and shall remain the sole and exclusive property of Licensor and its licensors, including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary rights thereto. Additionally, all right, title and interest to any data created by or on behalf of Licensor and relating to Licensor’s business shall remain the property of Licensor, whether or not supplied to Licensee or uploaded or entered into the Product(s) or made accessible by means of the Services.
2.7. Authorized Persons. Licensee is entitled to receive usernames and password for users of the Product(s) within the Licensee’s organization in accordance with any Order Form(s) (the “Authorized Persons”).
2.8. Usage Limits. In the event an Order Form(s) is entered into, Services may be subject to usage limits, including, for example, the quantities specified in any Order Form(s). Unless otherwise specified, (a) a quantity in an Order Form(s) refers to Authorized Persons, and the Service(s) may not be accessed by more than that number of Authorized Persons, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form(s), a User identification may only be reassigned to a new individual replacing one who will no longer use the Service(s). If Licensee exceeds a contractual usage limit set forth in an Order Form(s), Licensor may work with Licensee to seek to reduce Licensee’s usage so that it conforms to that limit. If, notwithstanding Licensor’s efforts, Licensee is unable or unwilling to abide by a contractual usage limit Licensee will execute an Order Form(s) for additional quantities of the applicable Services promptly upon Licensor’s request, and/or pay any invoice for excess usage in accordance with this Agreement.
2.9. Licensee’s Responsibilities. Licensee will (a) be responsible for Authorized Persons’ compliance with this Agreement, Documentation and any Order Form(s), (b) be responsible for the accuracy, quality and legality of Licensee’s Data and the means by which Licensee acquired the Licensee Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Licensor promptly of any such unauthorized access or use, and (d) use Services only in accordance with this Agreement, Documentation, any Order Form(s), and applicable laws and government regulations. Authorized Persons are not permitted to share their username and password with any other person (including, but not limited to, directors, officers, employees, agents, affiliates, representatives and advisors of Licensee). Licensor shall have no liability whatsoever for unauthorized use of login information of an Authorized Person.
2.10. Usage Restrictions. Licensee will not (a) make any Services or Licensor Content available to, or use any Services or Licensor Content for the benefit of, anyone other than Licensee or Authorized Persons, unless expressly stated otherwise in an Order Form(s), (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Services or Licensor Content, or include any Services or Licensor Content in a service bureau or outsourcing offering, (c) use any Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use any Services to store or transmit codes, files, scripts, agents or programs intended to do harm, (e) interfere with or disrupt the integrity or performance of any Services or third-party data contained therein, (f) attempt to gain unauthorized access to any Services or Licensor Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Licensor Content in a way that circumvents a contractual usage limit, or use any of the Services to access or use any intellectual property except as permitted under this Agreement or an Order Form(s), (h) copy any Services or any part, feature, function or user interface thereof, (i) copy Licensor Content except as permitted herein or in an Order Form(s), (j) frame or mirror any part of any Services or Licensor Content, other than framing on Licensee’s own intranets or otherwise for Licensee’s own internal business purposes or as permitted in an Order Form(s), (k) access any Services or Licensor Content in order to build a competitive product or service or to benchmark with a product or service, or (l) reverse engineer any Services (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement or Order Form(s) by Licensee that in Licensor’s judgment threatens the security, integrity or availability of Licensor Services, may result in Licensor’s immediate suspension of the Services, however Licensor will use commercially reasonable efforts under the circumstances to provide Licensee with notice and an opportunity to remedy such violation or threat prior to such suspension.
3. DELIVERY; ACCEPTANCE
Delivery and Acceptance of the Product(s) and Services. Licensee’s use of the Product(s) and Services prior to the Effective Date in a pilot or beta environment is subject to the terms of this Agreement. Licensor shall make the Product(s) and Services available to Licensee upon or following the Effective Date, subject to the terms of this Agreement. Delivery occurs when Licensor provisions the first user account, notifies Licensee of said activation and the account is activated, or, if applicable, Licensee downloads a Product from a Licensor server or network.
4. TERM AND TERMINATION
4.1. Term. This Agreement shall commence as of the Effective Date and shall continue for the term specified in any Order Form(s) which may be entered into by Licensor and Licensee, as such may be extended or terminated in accordance with this Agreement. In the event that Licensor and Licensee do not enter into an Order Form, the term of this Agreement shall continue until either party terminates this Agreement by providing written notice to the other party that it is terminating this Agreement for any or no reason.
4.2. Renewal. Except as otherwise specified in an Order Form(s), subscriptions pursuant to an Order Form(s) will automatically renew for additional periods equal to the expiring term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant term. The per unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless otherwise set forth in any Order Form(s) or unless Licensor provides Licensee notice of different pricing at least sixty (60) days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Licensor’s applicable list price in effect at the time of the applicable renewal, if higher.
4.3. Termination. This Agreement, any or all of the Services, and/or any or all Order Form(s) may be terminated by either party for cause (i) upon thirty (30) days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by Licensee in accordance with this Section 4.3, Licensor will refund Licensee any fees prepaid by Licensee covering the remainder of the term of all Order Form(s) after the effective date of termination. If this Agreement is terminated by Licensor in accordance with this Section 4.3, Licensee will pay any unpaid fees covering the remainder of the term of all Order Form(s). In no event will termination relieve Licensee of its obligation to pay any fees or amounts payable to Licensor for the period prior to termination.
5. INVOICING; PAYMENT; TAXES
5.1. Fees; Invoices. In the event that Licensee elects to purchase a paid offering of Licensor by executing an Order Form(s), the fees shall be as set forth in such Order Form(s). Such Order Form(s), if any, will also include payment terms for invoices.
5.2. Payment. In the event that Licensee elects to purchase a paid offering of Licensor by executing an Order Form(s), Licensee shall pay all Fees and other charges due in accordance with this Agreement. All such Fees and other charges are non-refundable. Without in any manner prejudicing the right of Licensor to claim that any other breach or default of this Agreement on the part of Licensee constitutes a material breach or default, it is understood and agreed that, except as provided hereunder, the failure of Licensee to make timely and complete payment shall constitute a material breach and default of this Agreement on the part of Licensee.
5.3. Taxes. In the event that Licensee elects to purchase a paid offering of Licensor by executing an Order Form(s), Licensee agrees to provide Licensor with a tax exemption certificate or to pay all sales, use or value-added taxes properly levied against or upon the provision of the Product(s) or Services. All such taxes may be separately stated on the invoice to which they apply, based on any allocation of the fees specified in the purchase order.
6. REPRESENTATIONS AND WARRANTIES
6.1. Representations and Warranties of Licensor. Licensor represents and warrants that it has all necessary rights and full authority as well as the ability and capacity to enter into this Agreement and to perform its obligations hereunder, and that this Agreement is not and shall not be in conflict with its charter or by-laws or with any other agreement to which it is a party or by which it may be bound.
6.2. Product Warranty. Licensor represents and warrants that the Product(s) and Services will perform materially in accordance with any Order Form(s) and the Documentation.
6.3. Disclaimer of Other Warranties. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY THIRD PARTY.
6.4. Representations and Warranties of Licensee. Licensee represents and warrants to Licensor that:
(a) it is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation and has all corporate power necessary to carry on its business as now being conducted;
(b) it has all necessary rights, including all legal and regulatory licenses and permissions, and full authority as well as the ability and capacity to enter into this Agreement and to perform its obligations hereunder, and that this Agreement is not and shall not be in conflict with its charter or by-laws or with any other agreement to which it is a party or by which it may be bound, and that the person who accepts this Agreement is authorized to bind Licensee to its terms.
6.5. No Legal Services Provided. Licensor is not an attorney and does not provide legal services.
7. INTELLECTUAL PROPERTY INFRINGEMENT AND LICENSEE’S INDEMNITY
7.1. Intellectual Property Indemnification. Licensor agrees to indemnify, defend, and hold harmless Licensee and its Affiliates, and its and their members, managers, directors, officers, employees and agents, from and against any and all liabilities, losses, costs, damages and expenses (including without limitation reasonable attorneys' fees) associated with or arising out of any threatened or actual claim for breach of the intellectual property rights of a third party resulting from Product(s) or Services, provided that Licensee agrees to give Licensor prompt notice of any claim subject to indemnification and to permit Licensor to defend and/or settle the claim, provided that any settlement that imposes any obligation on any of the indemnified parties, other than an obligation for which Licensor indemnifies the indemnified party, shall be subject to the consent of Licensee. The above indemnification, defense and hold harmless does not apply to the extent any such claim arises from Licensee Data, or from any uses of the Product(s) or Services in violation of this Agreement, any Documentation and/or any Order Form(s).
7.2. Exclusive Remedy for Infringement. If any Product(s) or Services becomes the subject of a claim of infringement for which Licensor would be obligated to indemnify as described above, then Licensor, at its expense, shall promptly either: (i) procure for Licensee the right to continue using same as contemplated hereunder; (ii) modify same to render same non-infringing (provided such modification does not adversely affect Licensee's use as contemplated hereunder); or (iii) replace same with an equally suitable, functionally equivalent, compatible, non-infringing Product(s) or Services. If Licensor is unable to accomplish any of the foregoing despite using reasonable best efforts to do so, then Licensor may terminate this Agreement as to such Product(s) or Services and shall provide Licensee with a pro rata refund for any fees paid in advance. The foregoing sets forth Licensee’s exclusive remedy for claims of infringement.
7.3. Licensee’s Indemnity. Licensee agrees to indemnify, defend, and hold harmless Licensor and its Affiliates, and its and their members, managers, directors, officers, employees and agents, from and against any and all liabilities, losses, costs, damages and expenses (including without limitation reasonable attorneys' fees) associated with or arising out of any threatened or actual claim related to any use of the Product(s) or Services by Licensee beyond the scope of or in violation of this Agreement, any Order Form(s) or Documentation, or any applicable law, rule or regulation, or from Licensee Data, provided that Licensor agrees to give Licensee prompt notice of any claim subject to indemnification and to permit Licensor to defend and/or settle the claim, provided that any settlement that imposes any obligation on any of the indemnified parties, other than an obligation for which Licensor indemnifies the indemnified party, shall be subject to the consent of Licensee.
8. CONFIDENTIAL INFORMATION
8.1. Licensee’s Confidential Information. Licensor agrees to maintain the confidentiality of all confidential information supplied to Licensor by or on behalf of Licensee and/or its Affiliates or accessed by Licensor or its Affiliates in connection with providing the Product(s) and Services hereunder, including without limitation, all confidential information concerning Licensee, its Affiliates, or their respective past, present, future or potential employees, clients, patients, customers, organization, work, know-how, finances, strategies, plans, systems, software and products (collectively, “Licensee Confidential Information”). Without limiting the generality of the foregoing, Licensee Confidential Information includes all Licensee Data. Licensor further agrees not to use any Licensee Confidential Information except for the purpose of performing its obligations under this Agreement and not to disclose such information except to its and its Affiliates’ employees and contractors who have a need to know for such purpose. Notwithstanding the foregoing, Licensor may disclose Licensee’s name for purposes of marketing and promotion of Licensor’s services. At Licensee’s direction and in Licensee’s sole discretion at any time, Licensor shall immediately return to Licensee any or all Licensee Confidential Information. Licensor shall be permitted to use anonymized, aggregated Licensee Confidential Information for the purposes of case study presentation, other marketing purposes, to improve the Services and/or to improve the Product.
8.2. Security. Licensor shall have and maintain during the Term an appropriate security program for Confidential Information to (i) ensure the security and confidentiality of Confidential Information, and (ii) protect against any threats or hazards to the security or integrity of Confidential Information. Licensor shall immediately notify Licensee of any transmission of Licensee’s Confidential Information outside of Licensor’s system.
8.3. Licensor’s Confidential Information. Licensee agrees that it will not disclose any confidential information regarding Licensor’s technology infrastructure and software, pricing, discounts, rebates and other incentives, development plans for new products and services, Licensor’s finances and strategies and the names of Licensor’s other clients (“Licensor Confidential Information”) to any person other than its (and its Affiliates’) employees, agents, subcontractors and representatives in connection with this Agreement, including without limitation administering its obligations and exercising its rights hereunder, unless Licensee has obtained Licensor's written consent. Licensee shall require that all persons having such access shall execute an agreement protecting Confidential Information to an extent no less than that provided hereunder. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO THE CONFIDENTIAL INFORMATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND LICENSOR SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.
8.4. Exceptions to Obligations of Confidentiality. Notwithstanding anything to the contrary in this Agreement, information shall not be considered confidential to the extent, but only to the extent, that such information is: (i) already rightfully known to the recipient free of any restriction at the time it is obtained from the discloser; (ii) subsequently rightfully learned from an independent third party free of any restriction and without breach of this Agreement; (iii) is or becomes publicly available through no wrongful act of either Party; or (iv) is independently developed by one Party without reference to any Confidential Information of the other.
8.5. Disclosures Required by Law. Notwithstanding anything to the contrary in this Agreement, Confidential Information may be disclosed by the recipient to the extent, but only to the extent, required by law, regulation, government agency or court order, discovery request, subpoena, or civil investigative demand, provided the recipient gives discloser (to the extent not prohibited from doing so) prompt written notice and reasonably cooperates with the discloser in seeking to limit the disclosure to the greatest extent possible consistent with the recipient’s legal obligations and obtaining confidential treatment for such information, if available.
9. LIMITATION OF LIABILITY
(a) THE AGGREGATE LIABILITY OF LICENSOR AND ITS AFFILIATES TO LICENSEE AND ITS AFFILIATES SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY LICENSEE TO LICENSOR DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY; THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
(b) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR STATUTORY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY ORDER FORM(S) OR THE SUBJECT MATTER HEREOF, IN EACH CASE REGARDLESS OF THE FORM OF ACTION, WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED, THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES AND AGREES THAT THE INFORMATION PROVIDED THROUGH THE PRODUCT(S) IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS FINANCIAL, LEGAL OR OTHER ADVICE OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR ANY DECISIONS MADE BASED ON
INFORMATION AVAILABLE ON, OR PROJECTIONS, SCENARIOS OR OTHER DATA COMMUNICATED THROUGH, THE PRODUCT(S).
10. RELATIONSHIP WITH SALESFORCE.COM, INC. AND OTHER THIRD PARTIES
10.2. Other Third Parties. Licensee acknowledges and agrees that this agreement constitutes a legal agreement between Licensee and Licensor only, and not any other third party application or service provider. If Licensee purchases any other product, service or application through the Services, Licensee agrees to be bound by and comply with the terms and conditions of that product, service or application, which shall be made available to Licensee in a separate link at the time of installation. Those terms and conditions shall govern Licensee’s use of such product, service or application and Licensor shall have no responsibility or liability for that product, service or application.
11.1. Notices. All notices shall be in writing and delivered personally or by reputable overnight courier, or mailed, first class mail, postage prepaid, to the recipient at (i) the address set forth in any Order Form(s), (ii) the recipient’s primary place of business in the event that no Order Form has been entered into, or (iii) such other address as the Party shall have notified the other.
11.2. Assignment. Except as provided in this Agreement, Licensee may not assign this Agreement or any rights or obligations hereunder (except by operation of law in connection with a merger, consolidation, or sale of all or substantially all of the assets of such Party) without the prior written consent of Licensor, which shall not be unreasonably withheld. Any assignment in violation of the foregoing shall be void. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns. For purposes of clarity, Licensor may assign this Agreement (including, without limitation, all Documentation and/or Order Forms, as applicable), without Licensee’s consent, including, without limitation, to an Affiliate or in connection with a merger, acquisition, consolidation, corporate reorganization, or sale of all or substantially all of Licensor’s assets.
11.3. Waiver of Jury Trial. Licensee hereby irrevocably waives any right to jury trial in connection with any action or litigation relating to this Agreement.
11.4. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to its conflict of laws principles that would result in the application of another jurisdiction’s laws. The Parties expressly waive and disclaim the
applicability of the Uniform Computer Information Transactions Act (UCITA), as may be adopted in any jurisdiction, and the United Nations Convention on the International Sale of Goods.
11.5. Exclusive Jurisdiction and Venue. The Parties hereto irrevocably consent and waive any objection to the exclusive jurisdiction of and venue in the federal and/or state courts located in New York County, State of New York.
11.6. Modification, Amendment, Supplement And Waiver. No modification, course of conduct, amendment, supplement to or waiver of this Agreement or any provision hereof shall be binding upon the Parties unless made in writing and duly signed by authorized representatives of both Parties. At no time shall any failure or delay by either Party in enforcing any provisions, exercising any option, or requiring performance of any provisions, be construed to be a waiver of same.
11.7. Order of Precedence. The terms of this Agreement shall supersede and replace the terms and conditions of any click wrap, shrink wrap, or other agreement included with or associated with the Product(s) or the medium on which it is contained, including without limitation, any purchase order, invoice, bill or statement associated with the Product(s), to the extent of any conflict or inconsistency.
11.8. Severability. If any provision of this Agreement is for any reason held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal and enforceable provision that comes closest to the intention of the Parties underlying the original provision.
11.9. Cumulative Remedies. Except as expressly set forth, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies of a Party at law or in equity, statutory or otherwise.
11.10. Whole Agreement; Interpretation. This Agreement contains the whole agreement between the Parties concerning the subject matter hereof and supersedes all previous agreements, promises, proposals, representations, understanding and negotiations, whether written or oral, between the Parties relating thereto. Both parties have been advised by counsel and have participated in the negotiation of this Agreement, and it shall not be construed for or against either party as a result of that party’s role in drafting.
11.11. Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement other than Licensor’s licensors, each of whom shall have the right to enforce this Agreement directly against Licensee to the extent it may deem such enforcement necessary or advisable to protect its rights.
11.12. Survival. The provisions of Sections 2 (Products and Services), 4 (Term and Termination), 5 (Invoice; Payment; Taxes), 6 (Representations and Warranties), 7 (Intellectual Property Infringement and Licensee’s Indemnity), 8 (Confidential Information), 9 (Limitation of Liability), 10 (Relationship With Salesforce.com, Inc.) and 11 (General) of this Agreement shall survive any completion, rescission, expiration or termination of this Agreement.
This Agreement was last updated January 2024.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Services” means SFDC services or functionality that may be made available to Reseller or Customer to try at Reseller or Customer’s option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Combined Solution” means the combined offering of SFDC Services and Reseller’s application “Litify”.
“Content” means information obtained by SFDC from publicly available sources or third party content providers and made available to Customer through the SFDC Services or pursuant to an Order Form, as more fully described in the Documentation.
“Customer” means the entity that has contracted with Reseller to purchase subscriptions to use the SFDC Services, subject to the conditions of these TOU, by way of purchasing the Combined Solution from Reseller.
“Customer Data” means any electronic data or information submitted by or for Customer to the SFDC Services, excluding Content and Non- SFDC Applications.
“Documentation” means the applicable SFDC Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via help.salesforce.com or login to the applicable SFDC Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the SFDC Services, including, for example, the AppExchange at http://www.salesforce.com/appexchange, or the Heroku add-ons catalog at https://addons.heroku.com/, and any successor websites.
“Non-SFDC Application” means a Web-based, mobile, offline or other software application functionality that interoperates with an SFDC Service, that is provided by Reseller, Customer, or a third party and/or listed on a Marketplace including as Salesforce Labs or under similar designation. Non-SFDC Applications, other than those obtained or provided by Customer, will be identifiable as such.
“Order Form” means the ordering document for the Combined Solution (that incorporates the SFDC Services) to be provided under the agreement between Customer and Reseller (which incorporates these TOU by reference), including any addenda, supplements, or additional product specific terms for the SFDC Services as required by SFDC.
“Reseller” means Litify LLC, the entity that has contracted directly with SFDC to resell the SFDC Services to its Customers and the entity that has contracted directly with Customer for the sale of a subscription to the Combined Solution (that incorporates the SFDC Services).
“SFDC” means Salesforce, Inc. (f/k/a salesforce.com, inc.), a Delaware corporation.
“SFDC Services” means the products and services of SFDC that are incorporated into the Combined Solution ordered by Customer under an Order Form and made available online by SFDC including associated offline or mobile components, as described in the Documentation. “SFDC Services” exclude Content and Non-SFDC Applications. For the avoidance of doubt, SFDC Services do not include any consulting, implementation or other professional services that may be offered by SFDC to Customer.
“User” means an individual who is authorized by Customer to use the Combined Solution (that incorporates the SFDC Service) for the benefit of Customer, for whom Customer has purchased a subscription, and to whom Customer (or, when applicable, SFDC at Reseller’s request), has supplied a user identification and password (for SFDC Services utilizing authentication). Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transacts business.
2. USE OF SERVICES AND CONTENT
2.1. Subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by SFDC regarding future functionality or features.
2.2. Usage Limits. SFDC Services and Content are subject to usage limits specified in Order Forms or the Documentation. SFDC may share usage data about the SFDC Services by Customer and Users with Reseller to manage the provision of SFDC Services. In addition, Customer may use the SFDC Services solely as part of the Combined Solution in the form provided by Reseller, and unless otherwise indicated in an Order Form, may not create or use custom objects beyond those that appear in the Combined Solution in the form provided by Reseller or utilize SFDC Services functionality in excess of the functionality described in the Combined Solution’s user guide.
2.3. Customer Responsibilities Customer will (a) be responsible for Users’ compliance with the TOU, Order Form terms and the Documentation, (b) be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the SFDC Services, and the interoperation of any Non-SFDC Applications with which Customer uses SFDC Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the SFDC Services, and notify SFDC or Reseller promptly of any such unauthorized access or use, and (d) use the SFDC. Services only in accordance with these TOU, the Documentation, the Acceptable Use and External Facing Services Policy and the Artificial Intelligence Acceptable Use Policy both available at https://www.salesforce.com/company/legal/agreements, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-SFDC Applications with which Customer uses SFDC Services or Content. Any use of the SFDC Services in breach of the foregoing by Customer or Users that in SFDC’s judgment threatens the security, integrity or availability of SFDC Services or SFDC’s other services, may result in SFDC’s immediate suspension of the SFDC Services, however SFDC will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
2.4. Usage Restrictions. Customer will not (a) make the SFDC Services or Content available to anyone other than Customer or Users, or use SFDC Services or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the SFDC Services or Content, or include SFDC Services or Content in a service bureau or outsourcing offering, (c) use the SFDC Services or Non-SFDC Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the SFDC Services or Non-SFDC Applications to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the SFDC Services or third-party data contained therein, (f) attempt to gain unauthorized access to the SFDC Services or Content or their related systems or networks, (g) permit direct or indirect access to or use of SFDC Services or Content in a way that circumvents a contractual usage limit, or use the SFDC Services to access or use any of SFDC’s intellectual property except as permitted under these TOU, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on an SFDC Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any SFDC Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, and (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile SFDC Services or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the SFDC Service, (3) copy any ideas, features, functions or graphics of the SFDC Service, or (4) determine whether the SFDC Services are within the scope of any patent.
2.5. Removal of Content and Non-SFDC Applications. If Customer receives notice that Content or a Non-SFDC Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, the Acceptable Use and External Facing Services Policy or the Artificial Intelligence Acceptable Use Policy, Customer will promptly do so. If Customer does not take required action in accordance with the above or if in SFDC’s judgment continued violation is likely to reoccur, SFDC may disable the applicable Content, SFDC Service and/or Non-SFDC Application until the potential violation is resolved. If requested by SFDC, Customer shall confirm such deletion and discontinuance of use in writing and SFDC shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if SFDC is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, SFDC may discontinue Customer’s access to Content through the SFDC Services.
2.6. Beta Services. From time to time, SFDC may make Beta Services available to Customer at no additional charge. Customer may choose to try such Beta Services or not in its sole discretion. Any use of Beta Services is subject to the Beta Services Terms at https://www.salesforce.com/company/legal/agreements/.
3. NON-SFDC PRODUCTS AND SERVICES
3.1. Non-SFDC Products and Services. SFDC or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-SFDC Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-SFDC provider, product or service is solely between Customer and the applicable Non-SFDC provider. SFDC does not warrant or support Non-SFDC Applications or other non-SFDC products or services, whether or not designated by SFDC as “certified” or otherwise, unless expressly provided otherwise in an Order Form. SFDC is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-SFDC Application or its provider.
3.2. Integration with Non-SFDC Applications. The SFDC Services may contain features designed to interoperate with Non-SFDC Applications. SFDC cannot guarantee the continued availability of such SFDC Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-SFDC Application ceases to make the Non-SFDC Application available for interoperation with the corresponding SFDC Service features in a manner acceptable to SFDC.
4. PROPRIETARY RIGHTS AND LICENSES
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, SFDC, its Affiliates, its licensors and Content providers reserve all rights, title and interest in and to the SFDC Services and Content, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2. Access to and use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, these TOU and the Documentation.
4.3. License by Customer to SFDC. Customer grants SFDC, its Affiliates and applicable contractors a worldwide, limited- term license to host, copy, use, transmit and display any Non-SFDC Applications and program code created by or for Customer using the SFDC Services or for use by Customer with the SFDC Services, and Customer Data, each as necessary for SFDC to provide and ensure proper operation of, the SFDC Services and associated systems in accordance with these TOU and the Documentation. If Customer chooses to use a Non-SFDC Application with an SFDC Service, Customer grants SFDC permission to allow the Non-SFDC Application and its provider to access Customer Data as required for the interoperation of that Non-SFDC Application with the SFDC Service. Subject to the limited licenses granted herein, SFDC acquires no right, title or interest from Customer or its licensors under these TOU in or to any Customer Data, Non-SFDC Application or such programcode.
4.4. License by Customer to Use Feedback. Customer grants to SFDC and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, license to use and incorporate into its services any suggestions, enhancement, requests, recommendations, correction, or other feedback provided by Customer or its Users, relating to the operation of SFDC’s or its Affiliates’ services.
4.5. Federal Government End Use Provisions. SFDC provides the SFDC Services, including related software and technology, for ultimate federal government end use in accordance with the following: The SFDC Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the SFDC Services shall be as provided in this TOU, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this TOU specifically granting those rights.
5. TERM AND TERMINATION
5.1. Termination and/or Suspension of the Services. Customer’s use of the SFDC Services may be terminated and/or suspended, at SFDC’s option, (a) upon 30 days notice from SFDC to Reseller and/or Customer of a material breach of the terms of these TOU, the Documentation or Order Forms by Customer or any User if such breach remains uncured at the expiration of such period; or (b) upon 10 days notice from SFDC to Reseller and/or Customer if Reseller breaches its payment obligations to SFDC with respect to the subscriptions it is reselling to Customer in connection with these TOU. Customer’s use of the SFDC Services may be immediately terminated and/or suspended, at SFDC’s option, upon notice by SFDC to Reseller and/or Customer (unless SFDC determines that such notice may not be permitted under applicable law) if, in SFDC’s good faith assessment, Reseller or Customer is in violation of applicable anticorruption laws and regulations or export and economic sanctions laws and regulations.
5.2. Termination of Reseller’s Agreement with SFDC. Following any termination or expiration of Reseller’s agreement with SFDC authorizing Reseller to resell the SFDC Services, each Customer subscription to the SFDC Services outstanding at the
time of such termination or expiration (“Legacy Order”) shall remain in effect until the end of its subscription term, and shall continue to be governed by these TOU, provided that Customer is not in breach of these TOU and SFDC has received all payments due in connection with such Legacy Orders. Except as provided herein, following a termination or expiration of Reseller’s agreement with SFDC, SFDC is under no obligation to provide the SFDC Services directly to Customer, or to assume a direct contractual relationship with Customer.
5.3. Shared Orgs. Customer acknowledges that if the SFDC Services are provisioned in an Org in which SFDC’s other services purchased from SFDC and/or another third party are also provisioned, access to such Org may be suspended or terminated due to breach of the agreement governing such SFDC’s other services, and that in no case will any such termination or suspension give rise to any liability to Customer for a refund or other compensation.
5.4. No Refunds upon Termination. To the maximum extent permitted by applicable law, in no case will any termination, expiration, or suspension of the SFDC Services, these TOU, or Reseller’s agreement with SFDC give rise to any liability of SFDC to Customer for refunds or damages.
6. WARRANTY DISCLAIMER
AS BETWEEN SFDC AND CUSTOMER, SFDC MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
Customer will defend SFDC and its Affiliates against any claim, demand, suit or proceeding made or brought against SFDC by a third party (a) alleging that the combination of a Non-SFDC Application or configuration provided by Customer and used with the SFDC Services infringes or misappropriates such third party’s intellectual property rights or (b) arising from (i) Customer's use of the SFDC Services or Content in an unlawful manner or in violation of these, the Customer’s agreement with Reseller, the Documentation, or Order Form, or applicable law (ii) any Customer Data or Customer’s use of Customer Data with the SFDC Services, or (iii) a Non-SFDC Application provided by Customer (each a “Claim Against SFDC”), and will indemnify SFDC for any damages, attorney fees and costs finally awarded against SFDC as a result of, or for any amounts paid by SFDC under a settlement approved by SFDC in writing of, a Claim Against SFDC; provided that SFDC: (A) promptly gives Customer written notice of the Claim Against SFDC, (B) gives Customer sole control of the defense and settlement of the Claim Against SFDC (provided that Customer may not settle or defend any Claim Against SFDC unless it unconditionally releases SFDC of all liability), and (C) provides to Customer all reasonable assistance, at Customer’s expense.
8. NO LIABILITY
9.1. Notice. Any notices that SFDC is required to provide to customers under the Documentation shall be provided by SFDC to the Reseller or Customer as determined by SFDC in its sole discretion based on the circumstances and designated contact information for notices available to SFDC in the SFDC Services.
9.2. Export Compliance. The SFDC Services, Content, other SFDC technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it and its Users are not on any U.S. government denied-party list. Customer will not permit any User to access or use any SFDC Service or Content in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria) or as may be updated from time to time at https://www.salesforce.com/company/legal/compliance/ or in violation of any U.S. export law or regulation.
9.3. Anti-Corruption. Customer acknowledges that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or anything of value from an employee or agent of SFDC or Reseller in connection with the SFDC Services.
9.4. Waiver. No failure or delay by SFDC in exercising any right under these TOU will constitute a waiver of that right.
9.5. Severability. If any provision of these TOU is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these TOU will remain in effect.
9.6. Further Contact. SFDC may contact Customer or Users regarding new and enhanced SFDC service features and offerings.
9.7. Third Party Beneficiary. These TOU are between Customer and Reseller; for the avoidance of doubt, SFDC is not a party to these TOU. SFDC is a third party beneficiary to the agreement between Customer and Reseller solely as it relates to these TOU, and SFDC is entitled to enforce and benefit from any term in these TOU.
9.8. Order of Precedence. With respect to the subject matter discussed herein, in the event of any conflict or inconsistency between these TOU and any other terms or conditions in Customer’s agreement or order form with Reseller, these TOU shall prevail.
9.9. Titles and Headings. Titles and headings of sections of this TOU are for convenience only and shall not affect the construction of any provision of this TOU.
10. COMBINED SOLUTION
Customer may use the SFDC Services solely as part of the Combined Solution. Customer may use the SFDC Services solely to use the functionality of the Combined Solution in the form it has been provided to Customer by Reseller. Unless otherwise indicated in an Order Form, Customer may not use the SFDC Services to create or use custom objects beyond those that appear in the Combined Solution in the form that it has been provided to Customer by Reseller. If Customer’s access to the Combined Solution provides Customer with access to any SFDC Services functionality within it that is in excess of the functionality described in the Combined Solution’s user guide, Customer agrees to not access or use such functionality. Customer agrees that Customer’s noncompliance with the terms set forth in this paragraph would be a material breach of the TOU.