Litify Inc. Master Services Agreement

This is a binding agreement (“Services Agreement”) by and between Litify Inc. (“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.

1.  DEFINITIONS

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.

“Licensee Confidential Information” has the meaning set forth in Section 8.

“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 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). 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, 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.

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     Confidentiality. 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 employees 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

10.1     Salesforce. Licensee acknowledges and agrees that this agreement constitutes a legal agreement between Licensee and Licensor only, and not Salesforce.com, Inc. and its subsidiaries (“Salesforce”). Licensor, and not Salesforce, is solely responsible for the Product(s) and Services and their content. Licensor, and not Salesforce, is solely responsible for any warranties, maintenance and support as may be required by law. Licensor, and not Salesforce, is solely responsible for addressing any and all claims by Licensee or any third party relating to the Product(s) and Services. Notwithstanding the foregoing, Licensee hereby agrees to comply with the terms of the SFDC Service Agreement, as a condition of this Agreement between Licensee and Licensor.  A copy of the SFDC Service Agreement is attached hereto as Appendix A. The SFDC Service Agreement may be modified or amended by Salesforce from time to time, and Licensee shall be deemed hereby to agree to such modifications or amendments.

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. GENERAL

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.

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 May 17, 2019.

 

APPENDIX A – SFDC Service Agreement

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

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

“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.

“Reseller” means Litify Inc.

“Reseller Application” means Litify.

“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.

“SFDC” means, collectively, salesforce.com, inc. and its affiliates.

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

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

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

1. Use of Platform.

(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.

(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.

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

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

(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.

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

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

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

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

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

6. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.

7. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.

8. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.

9. Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your nonpayment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.

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

11. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

12. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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

14. Third Party Beneficiary. SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.

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

 

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