Welcome To ChartSwap. ChartSwap, LLC, a Texas limited liability company (“ChartSwap,” “our,” “us,” or “we“) provides a proprietary service (as it may be updated from time to time, the “Service“) that is designed to allow providers and requesters of records to securely exchange records electronically.

Provider’s Acceptance Of This Agreement. Before we can permit use of the Service, it is important to us that we have a common understanding concerning the terms and conditions that govern such use. This document and the documents that we incorporate by making reference to them here (together, the “Agreement“) together set forth and establish our common understanding about the use of the Service as a provider of records on behalf of you or your organization (hereinafter, the “Provider“). If you or your organization wishes to access or use the Service as a requester of records (“Requester“), a separate agreement shall apply.

When you click “I AGREE” upon creating an account, you agree to be bound by this Agreement on behalf of Provider. Provider is only authorized to access or use the Service as a Provider under these terms. Please read this Agreement carefully and save it. If you would like us to send you a copy of it, you can request that here. If Provider does not agree with it, Provider should not use the Service as a Provider.

Representations About Provider. You represent and warrant to us that you have the power and authority to enter into this Agreement for Provider. Also, you represent and warrant that the information that you provide to us about Provider or its account in connection with the Service will be current, true, accurate, supportable and complete.

Authorized Users. Provider may allow its employees or independent contractors to use the Service on behalf of Provider (“Authorized Users“). As a condition to such use, Authorized Users may be required to agree to abide by the terms set forth herein. Provider and Authorized Users shall immediately notify us in the event that Provider or an Authorized User becomes aware of any violation of the terms of this Agreement. Provider shall be liable for any breach of the Agreement by any Authorized User.

Records. We do not claim ownership rights in the text, files, images, photos, video, sounds, links, works of authorship, or any other materials that Provider posts to or shares via the Service (collectively, “Records“). However, by posting or sharing Records through the Service, Provider hereby grants ChartSwap and our third party partners a license under any applicable intellectual property or other rights protecting the Records for the purpose of transmitting them through the Service to the applicable Requester(s). We reserve the right to remove any of the Records from the Service in our discretion if we determine that they may infringe another party’s rights, this Agreement, our policies, or applicable law.

Provider Representations About the Records. It is important to us that Providers do not use the Service to infringe the rights of others. As such, Provider represents and warrant to us that (i) Provider has the right to share the Records via the Service and has obtained any and all required consents and authorizations, (ii) to Provider’s knowledge, the posting and sharing of the Records via the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity, and (iii) it is Provider’s sole responsibility to verify as may be appropriate or required that the Requester(s) to which Provider provides Records via the Service is authorized to receive them.

Data Ownership. Provider shall own all right, title, and interest in and to any data that is collected by ChartSwap from Provider or its Authorized Users in connection with Provider’s use of the Service (“Data”). Provider grants and agrees to grant to ChartSwap a perpetual, non-exclusive license to use such Data (a) in order to provide the Service to Provider; (b) for statistical use (provided that such data is not personally identifiable); and (c) as necessary to monitor and improve the Service.

Confidentiality. Provider acknowledges that the Service and any other proprietary or confidential information provided to Provider by ChartSwap constitutes valuable proprietary information and trade secrets of ChartSwap. ChartSwap acknowledges that the Records provided to ChartSwap by Provider constitute confidential information of Provider and its customers. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use and as authorized hereby, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.

Business Associate Addendum. In the event and to the extent that ChartSwap is deemed, with respect to Provider, to be a “Business Associate” as defined in 45 C.F.R. Section 160.103 (or applicable successor provisions) with respect to the provision of the Service, Provider and ChartSwap agree to abide by the terms of the Business Associate Addendum, which is incorporated into this Agreement.

Payment Terms. Provider acknowledges that ChartSwap reserves the right to charge for the Service. Provider may also impose a fee on Requestors in connection with its provision of Records via the Service (“Custodian Fee“), provided that any such transaction is solely between Provider and the applicable Requester, and that as between ChartSwap and Provider, Provider is solely responsible for complying with applicable law in connection with the implementation of Custodian Fees, and for determining and paying applicable taxes related thereto. Provider may elect to connect its account to our third party payment processors (e.g. PayPal), or to have ChartSwap issue a check each month for the aggregate Custodian Fees earned by Provider from Requesters in such month. If Provider elects for ChartSwap to issue a monthly check, Provider acknowledges that such payment is subject to ChartSwap’s check issuance policies and that ChartSwap may deduct from any such payment a processing fee in accordance with the following schedule (the “Processing Fee“). The Processing Fee is in addition to any Custodian Fee. Provider agrees and acknowledges that is solely responsible for payment of any taxes due as a result of its payment of the Processing Fee. Click here for ChartSwap’s current Fee Schedule.

Reservation of Rights With Respect To The Service. ChartSwap reserves all rights in and to the Service and all related intellectual property not expressly granted under this Agreement. If Provider submits comments, suggestions, or other feedback regarding the Service (“Feedback“), Provider agrees that ChartSwap will be free to use such Feedback for any purpose.

Restrictions On Provider’s Use Of The Service. Provider may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Service. Provider may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, or any part thereof. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). Provider shall not exploit the Service in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity.

Limitations on Availability. The Service or some aspects thereof may not be available in all languages or in all countries. ChartSwap makes no representation that the Service is available or permitted in any particular location. Use of the Service is void where prohibited. Provider uses the Service at its own initiative and is responsible for compliance with any applicable laws. ChartSwap may also impose limits on the use or access to the Service as required by law.

Termination. This Agreement is effective until terminated by Provider or ChartSwap. Provider’s right to use or access the Service will terminate automatically without notice from ChartSwap if Provider fails to comply with any term(s) of this Agreement. Upon termination of the Agreement, Provider shall cease all use of or access to the Service. Provider acknowledges that unless we otherwise agree in writing, ChartSwap may restrict, modify, or terminate Provider’s access to the Service, without liability, for its convenience.

Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CHARTSWAP HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. CHARTSWAP DOES NOT WARRANT AGAINST INTERFERENCE WITH PROVIDER’S ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET PROVIDER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CHARTSWAP OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. CHARTSWAP MAKES NO REPRESENTATION REGARDING AND ACCEPTS NO RESPONSIBILITY OR LIABILITY ASSOCIATED WITH THE VERIFICATION THAT A GIVEN RECIPIENT IS AUTHORIZED TO RECEIVE THE APPLICABLE RECORDS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.

Limitation of Liability. IN NO EVENT SHALL CHARTSWAP OR ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO PROVIDER’S USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF CHARTSWAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall CHARTSWAP OR ITS AFFILIATES HAVE liability to PROVIDER for damages IN EXCESS OF THE GREATER OF the amount of TWENTY-FIVE dollars ($25) OR THE AMOUNT PROVIDER PAID FOR THE SERVICES IN THE six (6) MONTHS PRECEDING THE CLAIM. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF CERTAIN DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO PROVIDERS.

Indemnification. Provider shall indemnify, defend, and hold harmless ChartSwap and its directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) unauthorized use of the Service by Provider or any Authorized User, (b) any Records uploaded or posted by Provider or an Authorized User; or (c) any activities of Provider or an Authorized User through the use the Service, including without limitation any unauthorized disclosure made by Provider or its Authorized Users.

Export and Other Restrictions. Provider may not use or otherwise export or re-export the Service or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed or obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Application, Provider represents and warrants that it is not located in any such country or on any such list. Provider also agrees that it will not use the Service for any purposes prohibited by applicable law.

The Service and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

Consent to Receive Commercial E-mail. We may need to be able to communicate with Provider about the Service, and we would like to be able to make certain commercial offers available to Provider from time to time. AS SUCH, YOU CONSENT ON BEHALF OF PROVIDER TO RECEIVE COMMERCIAL E-MAIL MESSAGES FROM OR ON BEHALF OF CHARTSWAP AND OUR PARTNERS, AND ACKNOWLEDGE AND AGREE THAT YOUR PRIMARY EMAIL ADDRESSES AND OTHER INFORMATION MAY BE USED BY CHARTSWAP FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL MESSAGES. We will allow Provider to opt out of receiving some of these messages, but in order to stop receiving any messages from us whatsoever (including administrative messages regarding the Service), Provider will need to terminate its account.

Modifications. We may modify the terms of this Agreement from time to time. Any such modification shall be effective when we notify Provider of the modification (via an update to the terms delivered via email or through the Service) and Provider subsequently signifies its acceptance or uses the Service.

Supplemental Terms and Third Party Offerings. To enjoy certain aspects of the Service, additional terms may apply. We will present supplemental terms and conditions for review and acceptance at the time that Provider undertakes such activity within the Service, and any such supplemental terms (each, “Supplemental Terms“) shall become a part of this Agreement. Provider hereby further acknowledges and agrees that in the event of any conflict between the terms hereof and any Supplemental Terms, the Supplemental Terms shall govern with respect to the matters contemplated thereby. Similarly, to enjoy certain third party offerings, certain third party terms (each, “Third Party Terms“) may apply. Third Party Terms will be presented for review and acceptance at the time that Provider undertakes such activity within the Service, and any such Third Party Terms shall constitute an agreement between Provider and such third party. ChartSwap is not responsible for such third party offerings.

Miscellaneous. The laws of the State of Texas, excluding its conflicts of law rules, govern this Agreement and Provider’s use of the Service. Use of the Service may also be subject to other local, state, national, or international laws. This Agreement (including the Business Associate Addendum, to the extent applicable) constitutes the entire agreement between Provider and ChartSwap regarding use of or access to the Service as a Provider. The failure of ChartSwap to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. “ChartSwap” and all associated logos displayed within the Service are trademarks of ChartSwap (unless otherwise noted). This Agreement operates to the fullest extent permissible by law. ChartSwap may freely transfer or assign this Agreement and any of its rights or obligations hereunder. Provider may not transfer or assign this Agreement or any of its rights or obligations hereunder without the prior written consent of ChartSwap, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.

Contact Us. ChartSwap can be reached at:
ChartSwap, LLC
2951 Marina Bay Drive, Suite 130-132
League City, TX 77573

[email protected]

www.chartswap.com/contact

Business Associate Addendum

This Business Associate Addendum (the “Addendum“) supplements that certain Terms of Service – Provider version by and between ChartSwap, Inc., a Texas limited liability company (“ChartSwap“) and the Provider (as defined therein) (the “Agreement” or the “Terms of Service“), which is hereby incorporated by reference.

This Addendum is intended to satisfy any applicable obligations of Provider under 45 C.F.R. Sections 164.308(b), 164.314(a) and 164.504(e) and shall be applicable only in the event and to the extent ChartSwap is deemed, under applicable law and with respect to Provider, to meet be a Business Associate within the meaning of 45 C.F.R. §160.103, or applicable successor provisions with respect to the provision of the Service. To the extent ChartSwap is so deemed, this Addendum defines the rights and responsibilities of each party with respect to Protected Health Information as defined in the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, as each may be amended from time to time (collectively, “HIPAA“) with respect to the provision of the Service,

Definitions.

General. Terms used, but not otherwise defined, in this Addendum shall have the same meaning given to those terms by HIPAA, the HITECH Act and the Terms of Service as in effect or as amended from time to time.

Specific.

Breach” shall have the same meaning as the term “breach” in the HITECH Act, § 13400(1).

Business Associate” shall mean ChartSwap, LLC if and to the extent applicable in accordance with the preamble to this Addendum.

Electronic Protected Health Information” or “Electronic PHI” shall have the same meaning as the term “electronic protected health information” in 45 CFR § 160.103, limited to the information that Business Associate creates, receives, maintains, or transmits from or on behalf of Provider.

HITECH Act” means the Health Information Technology for Economic and Clinical Health Act of 2009, as in effect or as amended from time to time.

Individual” shall have the same meaning as the term “individual” in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).

Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164.

Protected Health Information” or “PHI” shall mean individually identifiable health information, as that term is defined in 45 CFR § 160.103, limited to the information created or received by Business Associate from or on behalf of Provider and obtained to provide the Service.

Required by Law” shall have the same meaning as the term “required by law” in 45 CFR § 160.103.

Secretary” shall mean the Secretary of the Department of Health and Human Services or his designee.

Security Rule” shall mean the Security Standards at 45 CFR Part 160 and Part 164.

Terms of Service” shall mean any present or future agreements (including the Terms of Service or any Supplemental Terms), either written or oral, between Provider and Business Associate under which Business Associate provides services to Provider which involve the access, use or disclosure of PHI. The Terms of Service is amended by and incorporates the terms of this Addendum to the extent contemplated hereby.

Unsecured Protected Health Information” or “Unsecured PHI” shall have the same meaning as the term “unsecured protected health information” in the HITECH Act, § 13402(h)(1).

Obligations and Activities of Business Associate.

Use and Disclosure. Business Associate agrees not to use or disclose Protected Health Information other than as permitted or required by the Terms of Service, this Addendum or as Required By Law.

Appropriate Safeguards. Business Associate agrees to use appropriate administrative, physical, and technical safeguards to prevent the use or disclosure of the Protected Health Information other than as provided for by this Addendum.

Electronic Transaction Standards. Where applicable, Business Associate shall adhere to the transaction standards as specified in 45 CFR Parts 160 and 162.

Reporting of Improper Access, Use or Disclosure. Business Associate agrees to report to Provider any impermissible acquisition, access, use or disclosure of Protected Health Information of which it becomes aware. Such reporting shall occur promptly and without unreasonable delay, and in no case later than sixty (60) calendar days after discovery of such acquisition, access, use or disclosure.

Mitigation. Business Associate agrees to mitigate, to the extent reasonably practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate or its agents or subcontractors in violation of the requirements of this Addendum.

Agents. Business Associate agrees to obtain from any agent, including a subcontractor to whom it provides Protected Health Information, reasonable assurances that it will adhere to the same restrictions and conditions that apply to Business Associate under this Addendum with respect to such information.

Provider Access. All Protected Health Information that is maintained by Business Associate for Provider will be available to Provider in a time and manner that reasonably allows Provider to comply with the requirements under 45 CFR §§ 164.524 and 164.526. Business Associate shall not be obligated to provide any such information directly to any Individual or person other than to Provider.

Access to Books and Records. Business Associate agrees to make internal practices, books, and records available to the Secretary, in a time and manner designated by the Secretary, for purposes of the Secretary’s determining Provider’s compliance with the Privacy Rule and Security Standards; provided, however, that time incurred by Business Associate in complying with any such request that exceeds its normal customer service parameters shall be charged to Provider at Business Associate’s then-current standard hourly rate.

Accounting. Provider acknowledges that Business Associate is not required by this Addendum to make disclosures of Protected Health Information to Individuals or any person other than to Provider, and that Business Associate does not, therefore, expect to maintain documentation of such disclosure as described in 45 CFR § 164.528. In the event that Business Associate does make such disclosure, it shall document the disclosure as would be required for Provider to respond to a request by an Individual for an accounting of disclosures in accordance with 45 CFR §164.528, and shall provide such documentation to Provider promptly upon request.

Permitted Uses and Disclosures by Business Associate.

Terms of Service. Except as otherwise limited in this Addendum, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, Provider as specified in the Terms of Service, provided that such use or disclosure would not violate the Privacy Rule if done by Provider.

Minimum Necessary. Business Associate shall limit its use, access and disclosure of an Individual’s Protected Health Information obtained to provide the Service: (i) where practicable, to a Limited Data Set, and (ii) in all other cases, to the minimum amount required to accomplish the intended purpose of the use, access or disclosure.

Use for Administration of Business Associate. Except as otherwise limited in this Addendum, Business Associate may use Protected Health Information obtained to provide the Service for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.

Disclosure for Administration of Business Associate. Except as otherwise limited in this Addendum, Business Associate may disclose Protected Health Information for the proper management and administration of the Business Associate, provided that (i) disclosures are Required by Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

Violations of Law. Business Associate may use Protected Health Information to report violations of law to appropriate Federal and State authorities.

Provider Obligations. Provider shall notify Business Associate of:

Privacy Notice. Provider shall notify Business Associate of any limitations(s) in Provider’s notice of privacy practices in accordance with 45 CFR § 164.520 to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information.

Changes of Permission of Individual. Any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of Protected Health Information.

Restrictions on Use or Disclosure. Provider shall notify Business Associate of any restriction to the use or disclosure of Protected Health Information that Provider has agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of Protected Health Information.

Requested Uses and Disclosures. Provider agrees that it will not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Provider.

Term and Termination.

Term. The term of this Addendum shall continue for the term of the Terms of Service and following termination of the Terms of Service until all Protected Health Information is destroyed or returned to Provider or its designee.

Termination. Breach of this Addendum shall be a material breach of the Terms of Service giving rise to a right of termination (subject to the applicable right to cure) under the Terms of Service.

Effect of Termination. Upon termination of the Terms of Service for any reason, Business Associate shall destroy all Protected Health Information. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate as well as Business Associate itself. Business Associate shall retain no copies of the Protected Health Information. In the event that Business Associate determines that destroying the Protected Health Information is infeasible, Business Associate shall promptly provide Provider notification of the conditions that make return or destruction infeasible. Business Associate shall extend the protections of this Addendum to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the destruction infeasible, for so long as Business Associate maintains such Protected Health Information. Provider shall bear the reasonable cost of storage of such Protected Health Information for as long as storage by Business Associate is required in the event that the parties determine that destruction and/or return is infeasible.

Miscellaneous.

Amendment. Each party agrees to take such action as is reasonably necessary to amend this Addendum from time to time as is necessary for Provider to comply with the requirements of HIPAA as they may be amended from time to time.; provided, however, that if such an amendment would materially increase the cost of Business Associate providing service under the Terms of Service, Business Associate shall have the option to terminate the Terms of Service on thirty (30) days advance notice.

Survival. The respective rights and obligations of the parties under this Addendum shall survive the termination of the Addendum and the Terms of Service.

Interpretation. Any ambiguity in the Addendum shall be resolved to permit either the Business Associate or the Provider to comply with HIPAA and the Privacy Rule.

Priority. The terms of this Addendum are hereby incorporated into the Terms of Service. In the event of a conflict between the terms of this Addendum and the terms of the Terms of Service, the terms of this Addendum shall prevail.

Entire Business Associate Agreement. This Addendum supersedes and replaces any former business associate agreement or addendum entered into by the parties.

SFDC Service Agreement

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

 

Reseller” means ChartSwap, LLC.

 

Reseller Application” means ChartSwap.com.

 

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.

 

SFDC Service” means the online, Web-based application and platform service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding AppExchange applications.

 

SFDC” means salesforce.com.

 

Users” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service 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 Salesforce.com or Reseller at Your request).

 

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

 

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

 

1. Use of Service.

(a) Each User subscription to the Reseller Application shall entitle one User to use the Service 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 Service). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service 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, to use another application other than 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 SFDC Service functionality within it that is in excess to 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 and use such functionality, and You agree that Your use of such functionality, Your use of applications other than the Reseller Application, 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) 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.

(c) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or Salesforce.com 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 and the SFDC Service.

(d) 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.

(e) 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 AppExchange 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, SFDC Service, and/or the Reseller Application, such as by exchanging data with the Platform, the SFDC Service, and/or the Reseller Application, or by offering additional functionality within the user interface of the Platform, the SFDC Service, and/or the Reseller Application 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. 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.

4. 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.

5. 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.

6. 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.

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

8. Data Storage. The Platform and SFDC Service includes a certain cumulative amount of storage per User subscription for no additional charge. Contact Your Reseller for additional information. Additional storage may be available for purchase from the Reseller.

9. No Warranty. SALESFORCE.COM 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, SALESFORCE.COM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO RESELLER APPLICATION AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

10. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOVER, 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.

11. Further Contact. SFDC may contact You regarding new SFDC service features and offerings.

12. Google Programs and Services. Platform or SFDC Service features that interoperate with Google programs and services depend on the continuing availability of applicable Google application programming interfaces (“APIs”) and programs for use with the Platform and the SFDC Service. If Google Inc. ceases to make such APIs and/or programs available on reasonable terms to SFDC, SFDC may cease providing such features without entitling You or Reseller to any refund, credit, or other compensation.

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