Master
Subscription Service and Maintenance Agreement
THIS MASTER SUBSCRIPTION
SERVICE AND MAINTENANCE AGREEMENT (“AGREEMENT”)
GOVERNS THE SERVICES AND YOUR PURCHASED SERVICES.
IF YOU PURCHASE AND/OR
SUBSCRIBE TO OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE, AND/OR
ONGOING USE OF, THE PURCHASED SERVICES.
This Agreement is between You and Us. You acknowledge that the Service and Purchased
Services are hosted for Us by Salesforce.com. By
agreeing to these terms, You confirm that You accept
and agree to abide by the Salesforce Platform Terms. If You are subscribing to the Service or
Purchased Services, You agree to all of the terms, conditions, rules, policies,
regulations and provisions (the "Applicable
Terms and Conditions"), as amended from time to time, and as set
forth in this Agreement and/or in the User Guide, the Salesforce Platform
Terms, the Order Forms, and/or the Third Party Applications, and all other notifications,
standards, rules, policies and procedures promulgated and/or provided by Us
and/or located on or posted to our website from time to time.
BY
EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO ALL OF THE
APPLICABLE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER
ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS
AFFILIATES TO THIS AGREEMENT AND TO ALL OF THE APPLICABLE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR
"YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT
HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT OR WITH ANY OF
THE APPLICABLE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY
NOT USE THE SERVICES OR SUBMIT ANY ORDER FORMS.
You may not access the Services
or Purchased Services if You are Our direct
competitor, except with Our prior written consent. In addition, You may not access the Services or Purchased Services for
purposes of monitoring the availability, performance or functionality, or for
any other benchmarking or competitive purposes.
This Agreement is effective
between You and Us commencing as of the date that You
accept this Agreement and continuing through the end of the Subscription Term
set forth in the last Order Form submitted by You and accepted by Us.
Table of Contents
1. Definitions
2. Purchased
Services
3. Use
of the Purchased Services
4. Third-Party
Providers
5. Fees
and Payment for Purchased Services
6. Proprietary
Rights
7. Confidentiality
8. Warranties
and Disclaimers
9. Mutual
Indemnification
10. Limitation
of Liability
11. Term
and Termination
12. Who
You Are Contracting With, Notices, Governing Law and Jurisdiction
13. General
Provisions
1. DEFINITIONS.
"Affiliate"
means any person or entity which directly or indirectly controls, is controlled
by, or is under common control with the subject person or entity. For purposes
of this definition, "Control" means direct or indirect ownership or
control of more than 50% of the voting interests of, or control of or over, the
subject person or entity or the ability to direct the management or direction of
the subject person or entity.
"AppExchange"
means the online directory of on-demand applications that work or might operate
or interoperate with the Services or Purchased Services, located at
http://appexchangesalesforce.com or at any successor websites.
"Applicable
Laws" means all ordinances, regulations, statutes, codes, rules,
orders, decrees, determinations, covenants and restrictions of all applicable
federal, state, local and other governmental agency, department, commission,
board, bureau, instrumentality and authority.
"Applicable
Terms and Conditions" shall have the meaning set forth on page 1
of this Agreement.
"Claim"
has the meaning set forth in Section
9.1 hereof.
"Confidential Information" shall have the meaning set
forth in Section 7.1 hereof.
"Damages"
has the meaning set forth in Section
9.1 hereof.
“Disclosing
Party” has the meaning set forth in Section 7.1 hereof.
"Malicious
Code" means viruses, worms, time bombs, Trojan
horses and/or other harmful or malicious code, files, scripts, agents or
programs.
"Order
Form" means the order form and any other order documents
required by Us from time to time for subscriptions
and/or purchases hereunder, including addenda thereto, that is entered into
between You and Us from time to time. Order Forms shall be deemed incorporated
herein by reference.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form.
"Receiving Party" has the meaning set forth in Section 7.1 hereof.
"Salesforce" shall mean Salesforce.com, and its
successors and assigns.
"Salesforce Platform Terms” means the Salesforce.com Platform
Terms of Use for Platform Enterprise Edition OEM Services Subscription for
XtremeMortgageWorX, LLC (and related products).
"Services"
means the online, Web-based applications and platform provided by Us via https://appexchange.salesforce.com/listingDetail?listingld+a0N3000000B4aVnEAJ.
"Taxes" has the meaning set forth in Section 5.6 hereof.
"Term" or "Subscription
Term" shall be the Subscription Term set forth in the Order Form.
"Third-Party
Applications" means online, Web-based applications
and offline software products that are provided by third parties, operate
and/or interoperate with the Purchased Services, and are identified as
third-party applications, including but not limited to those listed on the
AppExchange.
"User
Guide" means the user guide for the Purchased Services,
accessible via a secured line through Support@XtremeSalesWorX.com. XtremeMortgageWorX
will send a copy of updates to the User Guide to the designated person You provided.
"Users"
means You and Your Affiliates, employees, representatives, consultants,
contractors and/or agents who are authorized by You to use the Purchased Services,
for whom subscriptions to a Service have been purchased, and who have been
supplied user identifications and passwords by You (or by Us at Your request).
"We",
"Us" or "Our"
means XtremeMortgageWorX, LLC, as further described in Section 12 hereof.
"You"
or "Your" means You and
the company or other entity for which You are executing and/or accepting this
Agreement, and all of Your Affiliates, Users and Affiliates of such company or
entity.
"Your Data" means all electronic data or information
submitted by You, the Users or Your Affiliates to the
Purchased Services.
2.
PURCHASED SERVICES.
2.1. Provision of Purchased Services. We shall make the Purchased Services
available to You pursuant to this Agreement and the
relevant Order Forms during the Subscription Term(s). You agree that Your subscription and/or purchases hereunder are neither
contingent on the delivery of any future functionality or features nor
dependent on any oral or written public comments made by Us regarding future
functionality or features.
2.2. User Subscriptions.
Unless otherwise specified in the applicable Order Form, (i) Purchased Services
are purchased as User subscriptions and may be accessed by no more than the
specified number of Users, (ii) additional User subscriptions may be added
during the Subscription Term at the then current pricing provided by Us, prorated
for the remainder of the Subscription Term in effect at the time the additional
User subscriptions are added, and (iii) the added User subscriptions shall
terminate on the same date as the pre-existing subscriptions. User
subscriptions are for designated Users and cannot be shared or used by more
than one User but may be reassigned to new Users replacing former Users who no
longer require on-going use of the Purchased Services.
3. USE OF THE PURCHASED SERVICES.
3.1 Our Responsibilities.
During the Subscription Term, We shall (i) provide to You basic support for the
Purchased Services pursuant to Our Standard Success Plan at no additional
charge, and/or such upgraded support if purchased separately by You subject to
the payment by You of additional charges for such upgraded support, (ii) use
commercially reasonable efforts to make the Purchased Services available 24
hours a day, 7 days a week, except for (a) planned downtime (of which We shall
give You reasonable advance notice via the Purchased Services) which We will
use good faith efforts to schedule, to the extent reasonably practicable,
during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m.
Pacific time Monday, or (b) any unavailability, interruptions or disruptions
caused by circumstances beyond Our reasonable control, including without
limitation, acts of God, acts of government, flood, fire, earthquakes, weather,
civil unrest, acts of terror, strikes or other labor problems (other than those
involving Our employees), Internet service provider failures or delays, and/or
Salesforce service or connection interruptions, disruptions or issues, and
(iii) provide the Purchased Services only in accordance with Applicable Laws.
3.2. Your Responsibilities.
You shall (i) be responsible for all of Your Users’ compliance with this Agreement, all
Applicable Terms and Conditions, the Salesforce Platform Terms, all Order
Forms, and all Third Party Applications, (ii) be solely responsible for the
accuracy, quality, integrity and legality of Your Data and of the means by
which You acquired, used, supplied, downloaded, and/or manipulated Your Data,
(iii) use commercially reasonable efforts to prevent unauthorized access to or
use of the Purchased Services, and notify Us promptly of any unauthorized
access or use of the Services or the Purchased Services, and (iv) use the Purchased
Services only in accordance with all Applicable Terms and Conditions, the User
Guide, the Salesforce Platform Terms, this Agreement, the Third Party
Applications, and all Applicable Laws. You shall not (a) make the Purchased Services
available to anyone other than Users, (b) sell, resell, rent, lease, license,
sublicense, transfer, assign, distribute, timeshare or otherwise commercially
exploit or make available to any third parties the Services or Purchased Services,
(c) send, store or transmit, or use the Purchased Services to store or transmit,
infringing, libelous, obscene, threatening or otherwise unlawful or tortious
material, or to store or transmit material in violation of third-party privacy
rights or any Applicable Laws, (d) send, store or transmit, or use the Purchased
Services to store or transmit, Malicious Code, (e) interfere with or disrupt
the integrity or performance of the Services, Purchased Services or third-party
data contained therein, or (f) attempt to gain unauthorized access to the Services,
the Purchased Services or any related systems or networks or to access or use
other parties' data or Confidential Information.
3.3. Usage Limitations. Purchased
Services may be subject to other limitations, such as, for example, limits on
disk storage space, on the number of calls You are
permitted to make against Our application programming interface, and, for Purchased
Services that enable You to provide public websites, on the number of page
views by visitors to those websites. Any such limitations may be specified in
the Applicable Terms and Conditions as may be amended, promulgated and/or
provided from time to time. The Purchased Services provide real-time
information to enable You to monitor Your compliance
with such limitations.
4. THIRD-PARTY
PROVIDERS.
4.1.
Acquisition of Third-Party Products and Services. We
may offer Third-Party Applications for sale, subscription, license and/or use
under Order Forms. Any other acquisition, subjection, license and/or use by You
of third-party products, applications or services, including but not limited to
Third-Party Applications and implementation, customization and other consulting
services, and any exchange of data between You and any third-party provider, is
solely between You and the applicable third-party provider. We do not warrant
or support Third Party Applications or other third-party products, applications
or services, whether or not they are designated by Us
as “certified” or otherwise, except as specified in an Order Form. No purchase,
subscription, license and/or use of Third Party Applications or other
third-party products or services is required to use the Purchased Services.
4.2. Third-Party Applications and
Your Data. If You install or enable Third-Party
Applications or other third party products, applications and/or services for
use with Purchased Services, You acknowledge that We may allow providers of
those Third-Party Applications or other third party products, applications and/or
services to access Your Data as required for the interoperation of such
Third-Party Applications or other third party products, applications and/or services
with the Purchased Services. We shall not be responsible for any disclosure,
modification or deletion of Your Data resulting from any such access by
Third-Party Application providers or other third party products, applications
and/or services. The Purchased Services shall allow You
to restrict such access by restricting Users from installing or enabling such
Third-Party Applications or other third party products, applications and/or services
for use with the Purchased Services.
4.3 Transmission of Data.
Should You transmit Data to any other service, or add on Third-Party
Applications or other third party products, applications and/or services that
transmit Your Data outside the Purchased Services, whether or not you use the Purchased
Services to do this, You do this at Your own risk and You acknowledge that the
security and validity of Your Data is Your responsibility.
4.4 Google Services. Service features that operate or interoperate
with Google services depend on the continuing availability of the Google API
and program for use with the Purchased Services. If Google, Inc.,
ceases to make the Google API or program available on reasonable terms for the Purchased
Services, We may cease providing such Service features without entitling You to
any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR PURCHASED SERVICES.
5.1. User Fees.
You shall pay all fees and charges specified in all Order Forms or otherwise required
pursuant to the Applicable Terms and Conditions. Except as otherwise specified
herein or in an Order Form, (i) fees and charges are quoted and payable in
United States dollars, (ii) fees and charges are based on Purchased Services
and not actual usage, (iii) payment obligations are non-cancellable and fees and
charges paid are non-refundable, and (iv) the number of User subscriptions
purchased cannot be decreased during the relevant Subscription Term stated in
the Order Form. User subscription fees are based on monthly periods that begin
on the subscription start date and each monthly anniversary thereof; therefore,
fees for User subscriptions added in the middle of a monthly period will be
charged for that full monthly period and the monthly periods remaining in the
Subscription Term.
5.2. Invoicing and Payment.
You will provide Us with valid and updated credit card information, and with a
valid Order Form or alternative documents reasonably acceptable to Us. If You provide
credit card information to Us, You authorize Us to charge such credit for
all Purchased Services listed in the Order Form for the initial Subscription
Term and any renewal Subscription Term(s) as set forth in Section 11.2 hereof. Such
charges and payments shall be made in advance, either annually or in accordance
with any different billing or payment frequency stated in the applicable Order
Form. If the Order Form specifies that payment will be by a method other than a
credit card, We will invoice You, and You will pay,
all fees and charges in accordance with the provisions in the relevant Order
Form. Unless otherwise stated in the Order Form, invoiced charges are due net
30 days from the invoice date. You are responsible for maintaining complete and
accurate billing and contact information.
5.3. Overdue Charges. If
any fees and charges are not received by Us from You by the due date, then at
Our discretion, (a) such fees and charges may accrue late interest at the rate
of 1.5% of the outstanding balance per month or the maximum rate permitted by
law, whichever rate is lower, from the date such payment was due until the date
all such fees and charges are paid in full, and/or (b) We may condition the
continued use of the Purchased Services, future subscription renewals and Order
Forms, on payment in advance and/or payment terms shorter than those specified
in Section 5.2 hereof.
5.4. Suspension of Service and
Acceleration. If any amount owing by You under this Agreement
or any other agreement for Our Services is 30 or more days overdue (or 10 or
more days overdue in the case of amounts You have authorized Us to charge to
Your credit card), We may, without limiting Our other rights and remedies,
accelerate Your unpaid obligations under this Agreement or such agreements so
that all such obligations become immediately due and payable, and suspend Our Services
to You until such amounts are paid in full.
5.5. Payment Disputes. We
may, at our option, elect shall not to exercise Our
rights under Sections 5.3 or 5.4 hereof if the applicable
fees or charges are under reasonable and good-faith dispute and You are
cooperating diligently to resolve the dispute.
5.6. Taxes.
Unless otherwise stated, Our fees and charges for the Purchased Services do not
include any taxes, levies, duties or similar governmental taxes, assessments or
charges of any nature, including but not limited to value-added, sales, use or
withholding taxes, assessable by any local, state, provincial, federal or
foreign jurisdiction (collectively, " Taxes").
You are responsible for paying all Taxes associated with Your
subscriptions and purchases hereunder for all Purchased Services, and we may
charge You for such Taxes. If We have the legal right
or obligation to pay or collect Taxes for which You are responsible under this Section 5.6, the appropriate
amount shall be invoiced to and timely paid by You unless You provide Us with a
valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS.
6.1.
Reservation of Rights. Subject to the limited
rights expressly granted hereunder, We reserve all
rights, title and interests in and to the Services, including all related
intellectual property rights. No rights are granted to You
hereunder other than the limited right to use the Purchased Services upon
payment of all fees and charges therefor as expressly set forth herein.
6.2. Restrictions.
You shall not (i) access or permit any third party to access the Services or
Purchased Services except as permitted herein and in an Order Form, (ii) create
derivative works based on the Services, (iii) copy, frame or mirror any part or
content of the Services or Purchased Services, other than copying or framing of
Your Data for Your own internal business purposes, (iv) reverse engineer the Services
or Purchased Services or any intellectual rights in or to the Services or
Purchased Services, or (v) access or use the Services or Purchased Services (a)
in order to build a competitive product or service or copy any features,
functions or graphics of the Services, or (b) for any use other than as
expressly permitted herein.
6.3. Ownership of Your Data. As
between Us and You, You exclusively own all rights, title and interest in and
to all of Your Data. Notwithstanding the
foregoing, We shall have access to, and the right to use, manipulate,
compromise and reformat Your Data in Our data base or products, provided we do
not divulge or disclose any Confidential Information to third parties.
6.4. Suggestions. We
shall have a royalty-free, worldwide, transferable, sublicenseable,
irrevocable, and perpetual right and license to use or incorporate into the Services
any suggestions, enhancements, modifications, derivative works, changes, recommendations
and/or other feedback provided by You, Your Users and/or Your Affiliates,
and/or performed relating to the Services, Purchased Services or operation functionability
or use of the Services or Purchased Services.
Without limiting the foregoing, (i) You hereby grant Us a non-exclusive,
royalty-free license to use, copy, manipulate, combine, modify and create
derivative works from Your Data in connection with the Purchased Services, (ii)
any pre-existing or preparatory materials including, without limitation, ideas,
sketches, initial copy, concepts, proofs of concepts, artwork and type, will
remain Our sole and exclusive property, and (iii) any software, algorithms,
methods, processes, identifier codes or other technology developed by Us in
connection with the Services or Purchased Services or render any consulting
services to You will remain Our sole and exclusive property.
6.5. Federal Government End Use
Provisions. We provide the Services, including related
software and technology, for ultimate federal government end use solely in
accordance with the following: Government technical data and software rights
related to the Services include only those rights customarily provided to the
public as defined in this Agreement. This customary commercial license is
provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212
(Software) and, for Department of Defense transactions, DFAR 252.227-7015
(Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial
Computer Software or Computer Software Documentation). If a government agency
has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for
transferring such rights, and a mutually acceptable written addendum
specifically conveying such rights must be included in any applicable contract
or agreement.
7.
CONFIDENTIALITY.
7.1. Definition of Confidential
Information. As used herein, "Confidential Information" means all confidential
information disclosed by a party ("Disclosing
Party") to the other party ("Receiving Party"), whether orally or in writing, that
is designated as confidential or that reasonably should be understood to be
confidential given the nature of the information and the circumstances of
disclosure. Your Confidential Information shall include Your Data; Our
Confidential Information shall include the Services, the Purchased Services and
all other data, services, applications and information available through or In
connection with the Services, the Purchased Services and/or Confidential
Information of each party shall include the specific and expressed business terms
and conditions set forth in the Order Forms, as well as confidential and
proprietary business and marketing plans, technology and technical information,
product plans and designs, and business processes disclosed by such party to
the other party. However, Confidential Information shall not include any
information that (i) is or becomes generally known to the public without breach
of any obligation owed to the Disclosing Party, (ii) was known to the Receiving
Party prior to its disclosure by the Disclosing Party without breach of any
obligation owed to the Disclosing Party, (iii) is received from a third party
without breach of any obligation owed to the Disclosing Party, or (iv) was
independently developed by the Receiving Party.
7.2. Protection of Confidential
Information. Except as otherwise permitted in writing by
the Disclosing Party, the Receiving Party shall (i) use the same degree of care
(but in no event will the Receiving Party use less than reasonable care) with
respect to the Disclosing Party's Confidential Information that it uses (a) to
protect the confidentiality of its own Confidential Information of like kind,
and (b) not disclose or use any Confidential Information of the Disclosing
Party for any purpose outside the scope of this Agreement, and (ii) limit
access to Confidential Information of the Disclosing Party to those of its
employees, contractors and agents who need such access for purposes consistent
with this Agreement and who have signed confidentiality agreements with the
Receiving Party pertaining to the Confidential Information and containing
protections no less stringent than those set forth herein.
7.3. Protection of Your Data.
Without limiting the above but subject to the provisions of Section 6.4 hereof, We shall not
(a) modify Your Data, (b) disclose Your Data except as compelled by law or
court order in accordance with Section
7.4 (Compelled Disclosure) or as expressly permitted in writing by You,
or (c) access Your Data except to provide the Purchased Services or prevent or
address service or technical problems, or at Your request in connection with
customer support matters.
7.4. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing
Party if it is compelled by law or court order to do so, provided the Receiving
Party gives the Disclosing Party prior notice of such compelled disclosure (to
the extent legally permitted) and reasonable assistance, at the Disclosing
Party's cost, if the Disclosing Party wishes to contest the disclosure. If the
Receiving Party is compelled by law or court order to disclose the Disclosing
Party’s Confidential Information as part of a civil proceeding to which the
Disclosing Party is a party, and the Disclosing Party is not contesting the
disclosure, the Disclosing Party will reimburse the Receiving Party for its
reasonable cost of compiling and providing secure access to such Confidential
Information.
7.5 Agreed Disclosure.
You agree to allow Us to reference You as a customer and user of the Purchased Services
and Our technology, and to use Your tradenames, trademarks, logos and
copyrighted materials, on Our website and in print copy or marketing
collateral. You will provide Us with an approved company logo and other trademarks and
copyrighted materials that We may publish on Our website and/or in marketing
collateral to communicate such relationship.
8.
WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We
warrant that (i) the Purchased Services shall perform materially in accordance
with the Salesforce User Guide, and (ii) subject to Section 4.4 hereof, the functionality of the Purchased Services
will not be materially decreased during a Subscription Term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 11.3 hereof and Section 10.4 hereof.
8.2. Mutual Warranties.
Each party represents and warrants that (i) it has the legal right, power and
authority to enter into this Agreement, and (ii) it will not transmit to the
other party any Malicious Code (except for Malicious Code previously
transmitted to the warranting party by the other party).
8.3. Disclaimer. WE MAKE NO WARRANTIES OF ANY KIND, INCUDING,
BUT NOT LIMITED TO WITH RESPECT TO THE SERVICE OR PURCHASED SERVICES, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.
WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION, WARRANTY OR
GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY,
ACCURACY OR COMPLETENESS OF THE SERVICE OR PURCHASED SERVICES. WE DO NOT REPRESENT OR WARRANT THAT (A) THE
PURCHASED SERVICES WILL BE AVAILABLE, SECURE, TIMELY, UNINTERRUPTED OR
ERROR-FREE OR OPERATE IN COMBINATION WITH THE SALESFORCE SERVICE OR ANY OTHER
APPLICATION, SOFTWARE, HARDWARE, SYSTEM OR DATA, (B) THE SERVICE OR PURCHASED
SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA STORED USING
THE PURCHASED SERVICES WILL BE ACCURATE, RELIABLE, OR SECURE, (D) ERRORS OR
DEFECTS IN THE PURCHASED SERVICES WILL BE CORRECTED, OR (E) THE PURCHASED
SERVICES OR THE SYSTEMS USED TO MAKE THE PURCHASED SERVICES AVAILABLE ARE FREE
OF VIRUSES OR OTHER HARMFUL COMPONENTS.
THE PURCHASED SERVICES ARE PROVIDED STRICTLY ON AN "AS IS"
BASIS. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PURCHASED SERVICES,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.
MUTUAL INDEMNIFICATION.
9.1. Indemnification by Us. We
shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought
against You by a third party alleging that the Purchased Services infringe or
misappropriate the intellectual property rights of a third party, and shall
indemnify You for any actual out of pocket third party damages ("Damages") finally awarded
against, and for reasonable attorney’s fees incurred by, You in connection with
any such Claim; provided, however, Our obligations under this Section 9.1 are conditioned on
You (a) promptly giving Us written notice of the Claim, (b) giving Us sole
control of the handling, defense and settlement of the Claim (provided that We
may not settle any Claim unless the settlement unconditionally releases You of
all liability), and (c) providing Us with all reasonable assistance, at Our
expense.
9.2. Indemnification by You.
You shall defend Us against any Claim made or brought against Us by a third
party alleging that Your Data, or Your use of the Purchased Services in
violation of this Agreement and/or the Applicable Terms and Conditions
infringes and/or misappropriates the intellectual property rights of a third
party or violates Applicable Law, and shall indemnify Us for any Damages
finally awarded against, and for reasonable attorney’s fees incurred by, Us in
connection with any such Claim; provided, however, Your obligations
under this Section 9.1 are
conditional on Us (a) promptly giving You written notice of the Claim, (b)
giving You sole control of the defense and settlement of the Claim (provided
that You may not settle any Claim unless the settlement unconditionally
releases Us of all liability), and (c) providing You with all reasonable
assistance, at Your expense.
9.3. Exclusive Remedy.
This Section 9 (Mutual
Indemnification) states the indemnifying party’s sole liability to, and the
indemnified party’s exclusive remedy against, the other party for any type of
Claim described in this Section 9.
10.
LIMITATION OF LIABILITY.
10.1. Limitation of Liability. IN
NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT INCLUDING PURSUANT TO SECTION 9 ABOVE, WHETHER IN CONTRACT,
TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY
YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $10,000.00
OR THE AMOUNT PAID BY YOU FOR THE PURCHASED SERVICES HEREUNDER IN THE 12 MONTHS
PRECEDING THE INCIDENT.
10.2. Exclusion of Consequential and
Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, SPECULATIVE OR PUNITIVE DAMAGES
HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED
BY APPLICABLE LAW OR CLAIMED BY OR OWED TO THIRD PARTIES. FURTHERMORE, NOTWITHSTANDING THE FOREGOING,
THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 HEREOF.
11.
TERM AND TERMINATION.
11.1. Term of Agreement.
This Agreement commences on the date You accept it and continues until all User
subscriptions granted in accordance with this Agreement and/or any Order Forms have
expired or been terminated.
11.2. Term of Purchased Services. The
Purchased Services and User subscriptions purchased and/or obtained by You commence on the start date specified in the applicable
Order Form and continue for the Subscription Term specified therein. Except as
otherwise specified in the applicable Order Form, the Purchased Services and all
User subscriptions shall automatically renew for additional periods equal to
the expiring Subscription Term or one year (whichever is shorter), unless
either party gives the other notice of non-renewal at least 60 days before the
end of the relevant Subscription Term. The per-unit pricing during any such
renewal Subscription Term shall be the same as that during the prior
Subscription Term unless We have given You written
notice of a pricing increase at least 10 days before the end of such prior Subscription
Term, in which case the pricing increase shall be effective upon renewal and
for the renewal Subscription Term.
11.3. Termination for Cause. A
party may terminate this Agreement for cause (i) upon 30 days written notice to
the other party of a material breach (other than as provided in Subclause (ii) below) if such
breach remains uncured at the expiration of such period, (ii) upon 10 days
written notice to You if You fail to timely pay Us any amounts due to Us and
such breach is not cured within such 10 day period, provided that We shall only
be obligated to provide 10 day written notice of only 2 monetary defaults or
breaches by You during any calendar year and thereafter there shall be no
further required default notices or cure periods for any other monetary
defaults during such calendar year, or (iii) immediately and without notice 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.
11.4. Refund or Payment upon
Termination. Upon any termination for cause by You, We
shall not refund You any prepaid fees or charges covering
the remainder of the Subscription Term of all subscriptions after the effective
date of such termination. Upon any termination for cause by Us, You shall immediately
pay all unpaid fees and charges covering the remainder of the Subscription Term
of all Order Forms for all periods after the effective date of such
termination. In no event shall any termination relieve You
of the obligation to pay any fees and charges payable to Us for the period
prior to the effective date of such termination.
11.5. Return of Your Data. Upon
request by You made within 30 days after the effective date of termination of the
Purchased Services, We will make available to You for download a file of Your
Data in comma separated value (.csv) format along with attachments in their
native format. After such 30-day period, We shall have
no obligation to maintain or provide any of Your Data and shall thereafter,
unless legally prohibited, delete all of Your Data in and from Our systems and
the Purchased Services or otherwise in Our possession or under Our control.
11.6. Surviving Provisions. Sections 3.2, 4.4, 5, 6, 7, 8.3, 9, 10, 11.4, 11.5,
12 and 13 shall survive any termination or expiration of this
Agreement.
12.
WHO YOU ARE CONTRACTING WITH,
NOTICES, GOVERNING LAW AND JURISDICTION.
12.1. General. You
are contracting with XtremeMortgageWorX, LLC at 10,000 N. Central Expressway,
Suite 900, Dallas, TX 75231, Fax 1-866-855-5070 and 214-954-9541, Attention: Rhett Broussard, CEO, with a copy to Glen A.
Bellinger, Chief Legal Officer. The governing law is Texas and United States
Federal Law. The courts having exclusive jurisdiction for all matters arising
under, pursuant to or in connection with the Services, this Agreement, the
Order Forms and all other agreements and arrangements between the parties
hereto are located in Dallas, Texas, U.S.A
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all
notices, consents, permissions and approvals hereunder shall be in writing and
shall be deemed to have been given upon (i) personal delivery, (ii) the second
business day after mailing by certified mail, (iii) the day sent by confirmed
facsimile if sent on a business day, or the first business day after such
facsimile is sent if sent on a non-business day, or (iv) the day sent by confirmed
email if such email is sent on a business day, or the first business day after such
email is sent if sent on a non-business day.
Notices to You shall be addressed to the system administrator designated
by You for Your Purchased Services account, and in the case of billing-related
notices, to the relevant billing contact designated by You.
12.3. Agreement to Governing Law and
Jurisdiction. Each party agrees to the applicable
governing law above without regard to choice or conflicts of law rules, and to
the exclusive jurisdiction of the applicable courts referenced above.
12.4. Waiver of Jury Trial.
Each party hereby waives any right to jury trial in connection with any action
or litigation in any way arising out of or related to this Agreement.
13. GENERAL
PROVISIONS.
13.1.
Export Compliance. Each party shall comply with the
export laws and regulations of the United States and all other applicable
jurisdictions in providing and using the Purchased Services. Without limiting
the foregoing, (i) each party represents that it is not named on any U.S.
government list of persons or entities prohibited from receiving exports, and
(ii) You shall not permit Users to access or use Services or Purchased Services
in violation of any U.S. export embargo, prohibition or restriction.
13.2. Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary
or employment relationship between the parties.
13.3. No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
13.4. Waiver and Cumulative Remedies. No
failure or delay by either party in exercising any right under this Agreement
shall constitute a waiver of that right. Other than as expressly stated herein,
the remedies provided herein are in addition to, and not exclusive of, any
other remedies of a party at law or in equity.
13.5. Severability. If
any provision of this Agreement is held by a court of competent jurisdiction to
be contrary to law, such provision shall be modified by the court and
interpreted so as best to accomplish the objectives of the original provision
to the fullest extent permitted by law, and the remaining provisions of this
Agreement shall remain in effect.
13.6. Attorney Fees.
You shall pay on demand all of Our reasonable attorney
fees and other costs incurred by Us to collect any fees or charges due Us under
this Agreement following Your breach of Section
5.2 hereof.
13.7. Assignment.
You may not assign any of Your rights or obligations
hereunder, whether by operation of law or otherwise, without Our prior written
consent (not to be unreasonably withheld). Notwithstanding the foregoing, You
may assign this Agreement in its entirety (including all Order Forms), without
Our consent but without releasing You, to Your Affiliates in connection with a
merger, acquisition, corporate reorganization, or sale of all or substantially
all of Your assets not involving a direct competitor of Ours. One of Our remedies for any purported
assignment by You in breach of this Section 13.7 shall be, at Our
election, termination of this Agreement upon written notice to You and/or the
assignee. In the event of such a termination, We shall
not refund to You any prepaid fees covering the remainder of the Subscription
Term after the effective date of termination. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
13.8
Further
Contact. We
may contact You at any time regarding new or other
services, features and offerings.
13.9. Entire Agreement.
This Agreement, including all exhibits and addenda hereto and all Order Forms
and Applicable Terms and Conditions, constitutes the entire agreement between
the parties relating to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, proposals or representations, written or oral,
concerning its subject matter. No modification, amendment, or waiver of any
provision of this Agreement shall be effective unless in writing and either
signed or accepted electronically by the party against whom the modification,
amendment or waiver is to be asserted. However, to the extent of any conflict
or inconsistency between the provisions in the body of this Agreement and any
exhibit or addendum hereto or any Order Form, the terms of such exhibit,
addendum or Order Form shall prevail. Notwithstanding any language to the contrary
therein, no terms or conditions stated in any order documentation (excluding
Order Forms) shall be incorporated into or form any part of this Agreement, and
all such terms or conditions shall be null and void, unless We
expressly accept such terms or conditions in writing.
SALESFORCE.COM
("SALESFORCE") PLATFORM SECURITY OVERVIEW
Salesforce understands that the confidentiality,
integrity, and availability of customers' information are vital to such
customer's business operations and Salesforce's own
success. Salesforce uses a multi-layered approach to
protect that key information, constantly monitoring and improving its
application, systems, and processes to meet the growing demands and challenges
of security.
SECURE DATA CENTERS.
Salesforce's Service is co-located in dedicated spaces at
top-tier data centers. These facilities provide carrier-level support,
including:
1. Access control and physical security.
Ø 24-hour manned
security, including foot patrols and perimeter inspections
Ø Biometric scanning
for access
Ø Dedicated
concrete-walled Data Center rooms
Ø Computing equipment
in access-controlled steel cages
Ø Video surveillance
throughout facility and perimeter
Ø Building engineered
for local seismic, storm, and flood risks
Ø Tracking of asset
removal
2. Environmental controls.
Ø Humidity and
temperature control
Ø Redundant (N+1)
cooling system
3. Power.
Ø Underground utility
power feed
Ø Redundant (N+1)
CPS/UPS systems
Ø Redundant power
distribution units (PDUs)
Ø Redundant (N+1)
diesel generators with on-site diesel fuel storage
4. Network.
Ø Concrete vaults for
fiber entry
Ø Redundant internal
networks
Ø Network neutral;
connects to all major carriers and located near major Internet hubs
Ø High bandwidth
capacity
5. Fire detection and
suppression.
Ø VESDA (very early
smoke detection apparatus)
Ø Dual-alarmed,
dual-interlock, multi-zone, pre-action dry pipe water-based fire suppression
6. Secure transmission and
sessions.
Ø Connection to the Salesforce environment is via SSL 3.0/TLS 1.0, using global
step-up certificates from Verisign, ensuring that Our
Users have a secure connection from their browsers to Our Purchased Services
Ø Individual User
sessions are identified and re-verified with each transaction, using a unique
token created at login
7. Network protection.
Ø Perimeter firewalls
and edge routers block unused protocols
Ø Internal firewalls
segregate traffic between the application and database tiers
Ø Intrusion detection
sensors throughout the internal network report events to a security event
management system for logging, alerts, and reports
Ø A third-party service
provider continuously scans the network externally and alerts changes in
baseline configuration
8. Disaster Recovery.
Ø The Salesforce service performs real-time replication to disk
at each data center, and near real-time data replication between the production
data center and the disaster recovery center
Ø Data are transmitted
across encrypted links
Ø Disaster recovery
tests verify our projected recovery times and the integrity of the customer
data
9. Backups.
Ø All data are backed
up to tape at each data center, on a rotating schedule of incremental and full backups
Ø The backups are
cloned over secure links to a secure tape archive
Ø Tapes are not
transported offsite and are securely destroyed when retired
10. Internal and Third-party Testing
and Assessments.
Salesforce tests all code for
security vulnerabilities before release, and regularly scans its network and
systems for vulnerabilities. Third-party assessments are also conducted
regularly for:
Ø Application
vulnerability threat assessments
Ø Network vulnerability
threat assessments
Ø Selected penetration
testing and code review
Ø Security control
framework review and testing
11. Security
Monitoring.
Our Information Security department monitors notification from
various sources and alerts from internal systems to identify and manage
threats.
STANDARD SUCCESS PLAN
A. GENERAL.
This
Standard Success Plan will be provided to Users to resolve basic issues (cases)
at no additional charge in accordance with the terms described herein. Users can submit cases by email at any time, or by telephone on business days if confirmed by
email. All defined terms used herein
which are not expressly defined herein shall have the definitions ascribed to
such terms in the XtremeMortgageWorX Master
Subscription Service and Maintenance Agreement (the “MSA”).
Upon
case submission, Users will be asked to provide their company name, contact
information and case details, and each case will be assigned a unique case number. One of Our Support Representatives will use
commercially reasonable efforts to call or e-mail the User within two (2)
business days after receipt by Us of the case submission, documents,
information and details, and will use commercially reasonable efforts to
promptly resolve each case. Actual
resolution time will depend on the nature of the case, the case submission and
the desired resolution. A resolution may
consist of a fix, workaround or other solution in Our reasonable
determination.
B. DESIGNATED CONTACTS.
“Designated Contact(s)” are Users that You have identified as the primary liaison(s) between You
and Us for technical support. You shall
identify between one (1) and three (3) Designated Contacts. You may be charged an additional fee for
Designated Contacts in excess of three (3) at any given time. You shall promptly notify Us
in writing whenever a Designated Contact's responsibilities are transferred to
another individual or a Designated Contact is removed and/or replaced.
Your
Designated Contacts shall be responsible for:
You
shall ensure that Your Designated Contacts:
C. TELEPHONE SUPPORT HOURS.
Users
can submit cases via telephone on weekdays, excluding holidays, during Our normal support hours as stated in the table below. Users
can submit cases by email at any time, and a Support Representative will log in
cases on the next business day for later response by the appropriate Support
team.
Main
phone numbers as follows:
Support
Hours |
Telephone
Numbers |
Email |
8:00 a.m. - 5:00 p.m. Central |
866-855-5070
ext. 2 |
Telephone
support is available in English only.
D. LOGGING A CASE.
Users
may log a case by email, or by telephone call if confirmed by email, to Our support team as described above.
Note:
For assistance with User password resets, Users should use the “Forgot your
password?” link on the login page or contact a Designated Contact or system
administrator. For assistance with Salesforce usernames and lockouts, Users should contact a
Designated Contact or system administrator. For security reasons, we do not provide
contact information for Designated Contacts or system administrators.
E. REPRODUCING ERRORS.
We
must be able to reproduce errors in order to resolve them. You and Your Users agree to cooperate and work
closely with XtremeMortgageWorX to reproduce errors,
including conducting diagnostic or troubleshooting activities as reasonably
requested and appropriate. Also, subject
to Your approval on a case-by-case basis, Users may be
asked to provide User access to their Salesforce.com system for troubleshooting
purposes.
F. SEVERITY LEVELS.
Reproducible
errors that cannot promptly be resolved will be escalated to higher support
tiers for further investigation and analysis.
Issues
will be categorized and handled according to an assigned severity level. The
case severity level is selected by the User at the time of case submission, and
will be evaluated by Us, as follows:
Severity |
Support Responsibilities |
Level
1: Business
Standstill |
Totally inoperable: Where a problem, error
or defect is extremely serious with no workaround and is causing the business
to be at a standstill or seriously affected. You must be live for this status to be
allocated to a case. Targeted Response Time: Within one (1) business day after the case
is logged in. |
Level 2: Business Critical |
Severely inoperable: Where a problem, error
or defect is extremely serious with no obvious workaround and could cause the
business to be seriously affected if it remains outstanding without a
resolution for a defined period of time. Could impact the ability for the
system to go live. Targeted Response Time: Within one (1) business day after the case
is logged in. |
Level 3:
Major
Problem |
Partially inoperable: Where a problem, error or defect is serious but may have a workaround, and the business is not at a standstill or too
seriously affected. Targeted
Response Time: Within one (1)
business day after the case is logged in. |
Level 4:
Problem |
Fully Operational: Where a problem, error or defect is non-critical to the
business. Targeted Response Time: Within two (2) business days after the case
is logged in. |
Level 5:
Question |
Fully Operational: Where a question is raised to assist with the continued
running of the applications. Targeted Response Time: Within two (2) business days after the case
is logged in. |
G. EXCLUDED
ITEMS.
The
Standard Success Plan does not include any of the following:
Ø
Assistance
with Salesforce.com issues and/or errors with the Salesforce.com Platform;
Ø
Assistance
in developing User-specific customizations;
Ø
Assistance
with non-XtremeMortgageWorX products, services,
applications, or technologies, including implementation, administration or use
of third-party enabling technologies such as the internet, Google, databases,
computer networks or communications systems;
Ø
Assistance
with installation or configuration of hardware, including computers, hard drives,
networks or printers;
Ø
Troubleshooting
issues with your in-house developed or third party apps;
Ø
Troubleshooting
issues with integrations you have built for the Purchased Services;
Ø
Any
code that is developed outside of the core Purchased Services as stated in Your
MSA; or
Ø
Training
on new areas of the product, setup and configuration questions, or business
process questions, which types of requests should be directed to Us in writing.
Separate
consulting advice and services can be arranged pursuant to separate fee
arrangements for topics such as:
Ø
Instruction
in report writer techniques;
Ø
Instruction
in the use of the products or Purchased Services;
Ø
Salesforce
Administration;
Ø
System
configuration and setup;
Ø
Design,
writing and debugging of interfaces;
Ø
Design,
writing and debugging of custom pages and objects; and
Ø
Data
corrections in the event of data issues in Your system.