These SFDC Service Terms of Use ("Agreement") are between salesforce.com, inc., a Delaware corporation with its principal place of business at The Landmark @ One Market, Suite 300, San Francisco, California 94105 ("SFDC") and the Customer.  This Agreement is effective as of the Acceptance Date (the “Effective Date”).

1.     DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.  "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"AppExchange" means the online directory of applications that interoperate with the Services, located at http://www.salesforce.com/appexchange or at any successor websites.

“Customer” means the non-SFDC party named above and its Affiliates.

“Customer Data” means all electronic data or information submitted by Customer to the Services.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Acceptance Date” means the date on which SFDC accepts and order from the Reseller for Services subscriptions on behalf of Customer.

“Reseller” means the independent entity from which Customer has purchased subscriptions to the Services.

“Services” means the online, Web-based platform services provided by SFDC via http://www.salesforce.com and/or other designated websites as described in the User Guide, that are ordered by Customer from a Reseller, including associated offline components defined as part of the Services in the User Guide but excluding Third Party Applications.

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

“User Guide” means the online user guide for the Services, accessible via http://www.salesforce.com, as updated from time to time.

“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by SFDC at Customer’s request).  Users may include but are not limited to employees, consultants, contractors and agents of Customer, or third parties with which Customer transacts business.

2.     SERVICES

a.      Provision of Services. Subject to Customer’s payment of all applicable fees and its compliance with the terms of this Agreement, SFDC shall make the Services available to Customer pursuant to this Agreement.

b.     User Subscriptions.  Services are User subscriptions and may be accessed by no more than the specified number of Users.  Additional User subscriptions that are added during the subscription term will be prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added and the added User subscriptions shall terminate on the same date as the pre-existing User 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 ongoing use of the Services.

c.      SFDC Responsibilities.  SFDC shall: (i) provide to Customer basic support for the Services at no additional charge.  SFDC will not provide support for any Third Party Applications, including but not limited to an application provided to Customer by Reseller, or any customizations, extensions or and code provided by any third party, including but not limited to Reseller.  SFDC will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for:  (a) planned downtime (of which SFDC shall give at least 8 hours notice via the Services and which SFDC shall schedule to the extent 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 caused by circumstances beyond SFDC’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SFDC employees), or Internet service provider failures or delays.  SFDC will provide the Services only in accordance with applicable laws and government regulations.

3.     Customer Responsibilities.  Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify SFDC promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations.  Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

4.     THIRD-PARTY PROVIDERS

a.      Acquisition of Third-Party Products and Services.  Any acquisition by Customer of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services provide to Customer by Reseller, and any exchange of data between Customer and any third-party provider, including but not limited to Reseller, whether directly or indirectly by way of an application provided by Reseller or otherwise, is solely between Customer and the applicable third-party provider.  SFDC does not warrant or support third-party products or services, whether or not they are designated by SFDC as “certified” or otherwise, and whether or not they come from an authorized SFDC Reseller.

b.     Third-Party Applications and Customer Data.  If Customer installs or enables Third-Party Applications for use with Services, including but not limited to applications provided to Customer by Reseller, Customer acknowledges that SFDC may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Services.   SFDC shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers or through such providers’ applications.

c.      Google Services.  Service features that interoperate with Google services depend on the continuing availability of the Google application programming interface (“API”) and program for use with the Services.  If Google Inc. ceases to make the Google API or program available on reasonable terms for the Services, SFDC may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.

5.     SERVICE TERMS

a.      User Subscriptions.  If Customer is in breach of this Agreement SFDC may, without limiting its other rights and remedies, suspend Customer’s access to the Services upon notice to Customer.

6.     PROPRIETARY RIGHTS

a.      Reservation of Rights.   Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Services, including all related intellectual property rights.  No rights are granted to Customer hereunder other than as expressly set forth herein.

b.     Restrictions.  Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer's own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

c.      Ownership of Customer Data.  As between SFDC and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.

d.     Suggestions. SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.

e.      Federal Government End Use Provisions.  SFDC provides 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 SFDC 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

a.      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.  Confidential Information of Customer shall include Customer Data; Confidential Information of SFDC shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  However, Confidential Information (other than Customer Data) 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.

b.     Protection of Confidential Information.  Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall 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 containing protections no less stringent than those herein.

c.      Protection of Customer Data.  SFDC shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.  SFDC shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with the “Compelled Disclosure” section below or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer's request in connection with customer support matters.

d.     Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law 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 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.

8.     WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

a.      SFDC Warranties.  SFDC warrants that (i) the Services shall perform materially in accordance with the User Guide, and (ii) subject to the “Google Services” section above, the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Customer’s exclusive remedy from SFDC shall be to terminate this Agreement as provided in the “Termination for Cause” section below.

b.     Mutual Warranties.  Each party represents and warrants that (i) it has the legal power 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).

c.      Disclaimer.  EXCEPT AS 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

a.      Indemnification by SFDC. SFDC shall defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided that Customer (a) promptly gives SFDC written notice of the Claim, (b) gives SFDC sole control of the defense and settlement of the Claim (provided that SFDC may not settle or defend any Claim unless it unconditionally releases Customer of all liability), and (c) provides to SFDC all reasonable assistance, at SFDC’s expense.

b.     Indemnification by Customer.  Customer shall defend SFDC against any Claim made or brought against SFDC by a third party alleging that the Customer Data, or Customer's use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify SFDC for any damages finally awarded against, and for reasonable attorney’s fees incurred by, SFDC in connection with any such Claim; provided that SFDC (a) promptly gives Customer written notice of the Claim, (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases SFDC of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s cost.

c.      Exclusive Remedy.  This “Mutual Indemnification” section 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.

10.   LIMITATION OF LIABILITY

a.      Limitation of Liability.  IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER TO RESELLER FOR THE SFDC SERVICES, OR WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY CUSTOMER TO RESELLER FOR THE SFDC SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.

b.     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, COVER 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.

11.   TERM AND TERMINATION

a.      Term of Agreement.  This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with an applicable Reseller Order have expired or been terminated.

b.     Term of User Subscriptions.  User subscriptions commence on the start date specified in Reseller’s order to SFDC for such subscriptions and continue for the subscription term specified therein.

c.      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 if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

d.     Return of Customer Data.  Upon request by Customer made within 30 days after the effective date of termination, SFDC will make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format.  After such 30-day period, SFDC shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

e.      Surviving Provisions.  The sections titled “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Return of Customer Data,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.

12.   GENERAL PROVISIONS

a.      Export Compliance.  Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.  Without limiting the foregoing, (i) each of SFDC and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

b.     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.

c.      No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.

d.     Notices.  Except as otherwise specified in this Agreement, all notices, 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, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email.  Notices to SFDC shall be addressed to the attention of its VP, Worldwide Sales Operations, with a copy to its General Counsel.  All notices to Customer shall be addressed to the relevant Service system administrator designated by Customer.  Legal Notices to Customer shall also be addressed to Customer’s signatory of this Agreement or any person designated beneath the signature area below.

e.      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.

f.      Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the 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.

g.     Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).  Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.  A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

h.     Governing Law.  This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.

i.       Venue; Waiver of Jury Trial.  The state and federal courts located in San Francisco County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.  Each party hereby consents to the exclusive jurisdiction of such courts.  Each party also 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.

j.       Entire Agreement.  This Agreement constitutes the entire agreement between SFDC and Customer and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter between SFDC and Customer.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed 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 a Customer purchase order or in any other Customer 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.