Terms of Service – Requestors (Last Updated 01/01/2019)
ChartSwap Terms of Service
Welcome to ChartSwap. ChartSwap (“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.
- Requester’s Acceptance. 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 “ChartSwap Terms of Service” or “Agreement “) set forth and establish our common understanding about your use of the Service, as a requester of records, submitted on behalf of yourself, your client, or your organization (hereinafter, the “Requester”). When you click “I AGREE” upon creating an account, you agree to be bound by this Agreement as, or on behalf of, a Requester. Please read the ChartSwap Terms of Service carefully and save them. If you would like us to send you a copy of the ChartSwap Terms of Service, you can request that here. For avoidance of doubt, the ChartSwap Terms of Service apply to you, your client(s), and your organization.
- Representations About Requester. You represent and warrant to us that you have the power and authority to enter into this Agreement as, or on behalf of, a Requester. Also, you represent and warrant that the information you provide to us about Requester in connection with the Service will be current, true, accurate, supportable and complete. Each time Requester utilizes the Service, Requester is binding itself, its organization, and its client, to the ChartSwap Terms of Service, regardless of whether Requester has used the Service previously for different clients.
- Authorized Users. If applicable, Requester may allow its employees or independent contractors to use the Service on behalf of Requester (“Authorized Users”). As a condition to such use, Authorized Users must be required to agree to and abide by the ChartSwap Terms of Service. Requester bears the responsibility for ensuring that all Authorized Users agree to and abide by the ChartSwap Terms of Service and, pursuant to Section 15 below, shall indemnify and hold ChartSwap harmless in the event that one of its Authorized Users violates the ChartSwap Terms of Service. Requester and Authorized Users shall immediately notify us in the event that Requester or an Authorized User becomes aware of any violation of the terms of this Agreement. Requester 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(s) posts to or shares via the Service (collectively, “Records”), and make no representations with respect to such Records, including the accuracy and completeness of the Records. By requesting Records through the Service, you hereby certify that you have obtained all required consents to access such Records and you hereby agree to access and use them only as permitted by applicable law. In addition, you acknowledge that Providers have the right to revoke the use of Records provided to you under certain circumstances, including, without limitation, where the wrong records have been provided, and hereby agree to delete any such Records upon request.
- Data Ownership. Requester shall own all right, title, and interest in and to any data that is collected by ChartSwap from Requester or its Authorized Users in connection with Requester’s use of the Service (“Data”). Requester grants and agrees to grant to ChartSwap a perpetual, non-exclusive license to use such Data (a) in order to provide the Service to Requester; (b) for statistical use (provided that such data is not personally identifiable); and (c) as necessary to monitor and improve the Service.
- Confidentiality. Requester acknowledges that the Service and any other proprietary or confidential information provided to Requester by ChartSwap constitutes valuable proprietary information and trade secrets of ChartSwap. Requester agrees to preserve the confidential nature of such 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. ChartSwap shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. Requester acknowledges that ChartSwap operates through the platform SalesForce.com (“SFDC”), and transmits Data through the system maintained by SFDC (the “SFDC System”). Requester further acknowledges that Requestor’s Data may be transmitted outside of the SFDC System, and to the extent that such Data is transmitted outside of the SFDC System, SFDC is not responsible for the privacy, security or integrity of that Data.
- Payment Terms. Requester shall pay ChartSwap for requests made via the Service in accordance with ChartSwap’s fee schedule in effect at the time of the request, the current version of which can be found here (“ChartSwap Fees”). Requester acknowledges that ChartSwap is acting as an agent of Requester when it electronically delivers records via the Service and charges associated ChartSwap Fees. Providers may also impose a fee on Requesters in connection with its provision of Records via the Service (“Custodian Fee”). Requester acknowledges that it is not required to use ChartSwap to receive Records electronically, and Requester is free to obtain Records directly from Providers without incurring ChartSwap Fees and to request Records be delivered by Provider outside of ChartSwap. Requester acknowledges that any fees paid to its agent, ChartSwap, are voluntary and distinct from the Custodian Fee and not subject to any of the statutory or regulatory limits placed upon Custodian Fees. Requester has the option of paying a fee to its agent, ChartSwap, separate and apart from the Custodian Fee, to receive records via electronic delivery. Requester may also elect to receive Records via mail, and in this instance, the Requester will only have to pay any relevant Custodian Fee and will not pay the voluntary ChartSwap Fees. ChartSwap Fees and Custodian Fees shall be paid in U.S. Dollars and shall be charged to the payment method provided to ChartSwap. Requester may elect to connect its account to our third-party payment processors (e.g., PayPal) in order to enable the payments of the Fees contemplated above. Requester agrees and acknowledges that it is solely responsible for payment of any Custodian Fees. All fees are exclusive of applicable sales, excise, use or similar taxes. Requester shall pay such taxes either directly or to ChartSwap or the Provider, as applicable, or as otherwise required by law or regulation.
- 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 Requester submits comments, suggestions, or other feedback regarding the Service (“Feedback”), Requester agrees that ChartSwap will be free to use such Feedback for any purpose.
- Restrictions On Requester’s Use Of The Service. Requester may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Service. Requester 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). Requester 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. Requester 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 Requester or ChartSwap. Requester’s right to use or access the Service will terminate automatically without notice from ChartSwap if Requester fails to comply with any term(s) of this Agreement. Upon termination of the Agreement, Requester shall cease all use of or access to the Service. Requester acknowledges that unless otherwise agreed to in writing, ChartSwap may restrict, modify, or terminate Requester’s access to the Service, without liability, for its convenience.
- Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND ANY RECORDS ARE 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 REQUESTER’S ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET REQUESTER’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. 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 REQUESTER’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 REQUESTER FOR DAMAGES IN EXCESS OF THE GREATER OF THE AMOUNT OF TWENTY-FIVE DOLLARS ($25) OR THE AMOUNT REQUESTER 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 REQUESTERS.
- Arbitration Agreement. REQUESTER AND CHARTSWAP BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION OR IN SMALL CLAIMS COURT. REQUESTER UNDERSTANDS THAT BY THIS AGREEMENT REQUESTER IS GIVING UP THE RIGHT TO BRING A CLAIM IN COURT OR IN FRONT OF A JURY. WHILE THE PROCEDURES MAY BE DIFFERENT, AN ARBITRATOR CAN AWARD REQUESTER THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THIS AGREEMENT, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN AWARD THEM TOO. THE PARTIES ALSO BOTH AGREE THAT:a. THE FEDERAL ARBITRATION ACT APPLIES TO THIS AGREEMENT, EXCEPT FOR SMALL CLAIMS COURT CASES OR ACTIONS TO ENFORCE THE CONFIDENTIALITY OBLIGATIONS IN SECTION 6 OF THIS AGREEMENT, ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THIS AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES REQUESTER RECEIVES FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES), INCLUDING ANY DISPUTES REQUESTER HAS WITH OUR EMPLOYEES OR AGENTS, WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) OR BETTER BUSINESS BUREAU (“BBB”). REQUESTER CAN ALSO BRING ANY ISSUES IT MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR REQUESTER. THIS AGREEMENT TO ARBITRATE CONTINUES TO APPLY EVEN AFTER REQUESTER HAS STOPPED RECEIVING SERVICE FROM US.b. UNLESS REQUESTER AND CHARTSWAP AGREE OTHERWISE, THE ARBITRATION WILL TAKE PLACE IN HARRIS COUNTY. FOR CLAIMS OVER $10,000, THE AAA’S CONSUMER ARBITRATION RULES WILL APPLY. FOR CLAIMS OF $10,000 OR LESS, THE PARTY BRINGING THE CLAIM CAN CHOOSE EITHER THE AAA’S CONSUMER ARBITRATION RULES OR THE BBB’S RULES FOR BINDING ARBITRATION OR, ALTERNATIVELY, CAN BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. REQUESTER CAN GET PROCEDURES, RULES AND FEE INFORMATION FROM THE AAA (WWW.ADR.ORG), THE BBB (WWW.BBB.ORG) OR FROM US. FOR CLAIMS OF $10,000 OR LESS, YOU CAN CHOOSE WHETHER REQUESTER WOULD LIKE THE ARBITRATION CARRIED OUT BASED ONLY ON DOCUMENTS SUBMITTED TO THE ARBITRATOR, OR BY A HEARING IN PERSON OR BY PHONE.c. THIS AGREEMENT DOES NOT ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA OR BBB PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THIS AGREEMENT. ANY QUESTION REGARDING THE ENFORCEABILITY OR INTERPRETATION OF THIS PARAGRAPH SHALL BE DECIDED BY A COURT IN TEXAS APPLYING TEXAS AND/OR FEDERAL LAW AND NOT THE ARBITRATOR.d. IF EITHER OF US INTENDS TO SEEK ARBITRATION UNDER THIS AGREEMENT, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO CHARTSWAP SHOULD BE SENT TO CHARTSWAP TO THE ATTENTION OF: NEWTON ROSS AND/OR MELANIE PITA, ESQ., 1010 LAMAR, SUITE 1800, HOUSTON, TEXAS 77002. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF WE ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION.e. AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN NOT BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.f. IF FOR SOME REASON THE PROHIBITION ON CLASS ARBITRATIONS SET FORTH IN SUBSECTION (C) CANNOT BE ENFORCED AS TO ALL OR PART OF A DISPUTE, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY TO THAT DISPUTE OR PART OF THE DISPUTE.
- Indemnification. Requester 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 or any Records by Requester or any Authorized User, (b) any Records accessed by Requester or an Authorized User; (c) any activities of Requester or an Authorized User through the use the Service, including without limitation any unauthorized disclosure made by Requester or its Authorized Users; or (d) violation of the ChartSwap Terms of Service.
- Export and Other Restrictions. Requester 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, Requester represents and warrants that it is not located in any such country or on any such list. Requester 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 Requester about the Service, and we would like to be able to make certain commercial offers available to Requester from time to time. AS SUCH, YOU CONSENT AS A REQUESTER OR ON BEHALF OF REQUESTER 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 Requester 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), Requester 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 Requester of the modification (via an update to the terms delivered via email or through the Service) and Requester subsequently signifies its acceptance or uses the Service.
- Supplemental Terms and Third-Party Offerings. To use certain aspects of the Service, additional terms may apply. We will present supplemental terms and conditions for review and acceptance at the time that Requester undertakes such activity within the Service, and any such supplemental terms (each, “Supplemental Terms”) shall become a part of this Agreement. Requester 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 Requester undertakes such activity within the Service, including but not limited to the SFDC Service Agreement, attached hereto as Exhibit A, and any such Third-Party Terms shall constitute an agreement between Requester and such third party. ChartSwap is not responsible for such third-party offerings.
- Texas Law Governs. The laws of the State of Texas, excluding its conflicts of law rules, govern this license and Requester’s use of the Service. Use of the Service may also be subject to other local, state, national, or international laws.
- Entirety of the Agreement. The ChartSwap Terms of Service and any Supplemental Terms or Third-Party Terms, constitute the entire agreement between Requester and ChartSwap regarding use of or access to the Service as a Requester.
- No Waiver. 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.
- Section Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
- Reservation of Trademark. “ChartSwap” and all associated logos displayed within the Service are trademarks of ChartSwap (unless otherwise noted).
- Assignability and Transfer of. ChartSwap may freely transfer or assign this Agreement and any of its rights or obligations hereunder. Requester 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.
- Severability. 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.
- Survival: Sections 8, 9, 12, 13 and 14 shall survive the termination of this Agreement for any reason.
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
“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.
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.
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.