SALESFORCE PARTNER PROGRAM AGREEMENT
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SALESFORCE PARTNER PROGRAM AGREEMENT
(SPPA Version Date: May 1, 2020)
THIS
SALESFORCE
PARTNER
PROGRAM
AGREEMENT
(“
SPPA
”)
AND
THE
PROGRAM POLICIES
REFERENCED
HEREIN
(COLLECTIVELY,
THE
“
AGREEMENT
”)
GOVERNS YOUR
ACCESS
TO
THE
PARTNER
COMMUNITY
AND
PARTICIPATION
IN
THE
SALESFORCE
PARTNER
PROGRAM.
BY ACCEPTING THIS SPPA,
EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR
OTHERWISE
ELECTRONICALLY
INDICATING
ACCEPTANCE,
YOU
AGREE
TO
THE
TERMS
OF
THIS
AGREEMENT.
IF
YOU
ARE
ENTERING
INTO
THIS
AGREEMENT
ON
BEHALF
OF
A
COMPANY
OR
OTHER
LEGAL
ENTITY,
YOU
REPRESENT
THAT
YOU
HAVE
THE
AUTHORITY
TO
BIND
SUCH
ENTITY
TO
THESE
TERMS
AND
CONDITIONS,
IN
WHICH
CASE
THE
TERMS
"YOU"
OR
"YOUR"
SHALL
REFER
TO
SUCH
ENTITY.
YOU
AND
SALESFORCE
(“
SFDC
”)
ARE
EACH
A
“
PARTY
”
AND
COLLECTIVELY
“
PARTIES
”
TO
THIS
AGREEMENT.
YOU
MAY
NOT
ACCESS
THE
PARTNER
COMMUNITY
OR
PARTICIPATE
IN
THE
PARTNER
PROGRAM
IF
YOU
(I)
DO
NOT
AGREE
WITH
THESE
TERMS
AND
CONDITIONS,
OR
(II)
ARE
OR
BECOME
(IN
WHOLE
OR
IN
PART)
A
DIRECT
COMPETITOR
OF
SFDC
EXCEPT
WITH
SFDC’S
PRIOR
WRITTEN
CONSENT.
FURTHER,
YOU
MAY
NOT
ACCESS
THE
PARTNER
COMMUNITY
OR
JOIN
THE
PARTNER
PROGRAM
FOR
PURPOSES
OF
MONITORING
SFDC
OR
ITS
SERVICES,
THEIR
PERFORMANCE
OR
FUNCTIONALITY,
OR
FOR
ANY
OTHER
BENCHMARKING
OR
COMPETITIVE
PURPOSES.
IMPORTANT: IF YOU ARE DOMICILED OUTSIDE THE UNITED STATES, PLEASE REVIEW SECTION 16 OF
THIS SPPA FOR COUNTRY-SPECIFIC LOCAL LAW REQUIREMENTS THAT MAY APPLY IN YOUR
JURISDICTION.
THE
AGREEMENT
BETWEEN
YOU
AND
SFDC
ALSO
INCLUDES
THE
PROGRAM POLICIES.
IT
IS
VERY
IMPORTANT
THAT
YOU
ALSO
READ
THOSE
PORTIONS
OF
THE
PROGRAM POLICIES
THAT
APPLY
TO
YOUR
PROGRAM
TYPE(S).
SALESFORCE PARTNER PROGRAM AGREEMENT
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Definitions
“
Affiliate
” means any entity that directly or indirectly controls, is controlled by, or is under common control with the
subject entity. For purposes of this definition, “
Control
” means direct or indirect ownership or control of more than
50% of the voting interests of the subject entity.
“
AppExchange
” means SFDC’s online directory of (i) applications that interoperate with the Services and (ii)
consulting partner services.
“
Beta Services
” means Services or functionality that may be made available to Customer or Partner to try at its option
at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production,
evaluation, or by a similar description.
“
Content
” means information obtained by SFDC from publicly available sources or its third party content providers
and made available to Customer or Partner through the Services, Beta Services or pursuant to an Order Form, as
more fully described in the Documentation.
“
Customer
” means an individual or entity (including its Affiliates) that has entered into a Master Subscription
Agreement with SFDC and one or more Order Form(s) to purchase Services.
“
Customer Data
” means electronic data and information submitted by or for Customer to the Services, excluding
Content and Non-SFDC Applications.
“
Documentation
” means the applicable Service’s Trust and Compliance documentation, and its usage guides and
policies, as updated from time to time, accessible via help.salesforce.com or login to the applicable Service.
“
Effective Date
” of this Agreement will be the date on which Partner accepts this Agreement as set forth above.
“Non-SFDC Application”
means a Web-based, mobile, offline or other software application functionality that is
provided by Customer, Partner or a third party and interoperates with a Service, including, for example, an application
that is developed by or for Customer or Partner, is listed on an online directory, catalog or marketplace of applications
that interoperate with the Services, including, for example, the AppExchange, or is identified as SFDC Labs or by a
similar designation.
“
Order Form
” means, depending on the context in which it is used herein,
(i)
the ordering documents that are entered into between Partner and SFDC from time to time to effect
Partner’s payment of Program Fees associated with its participation in the Partner Program or receipt of
certain additional Program Benefits, including any addenda to such ordering documents; Order Forms
submitted by Partner shall be deemed incorporated herein by reference;
or
(ii)
ordering documents or online order specifying the Services to be provided to a Customer and associated
with a Customer’s purchase of Services from SFDC.
“
Participation Qualifications
”
means the Program Type requirements set forth in the applicable Program Type’s
Program Policies.
“
Partner
” means (i) a company or other legal entity, or (ii) an individual acting on their own behalf, who has agreed
to this Agreement.
“
Partner Community
” means a dedicated instance of SFDC’s Community product that SFDC makes available to
certain participants in the Partner Program (which may have varying levels of access based on the Partner’s assigned
Program Type and Partner Tier) at https://partners.salesforce.com/ (as such URL may be updated from time to time)
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to facilitate their participation in the Partner Program, including the ability to access online training courses, log support
cases, and collaborate with Salesforce employees and other SFDC Partners via shared Chatter groups.
“
Partner Program
” means, collectively, the Program Benefits and rights and obligations of Partner and SFDC that
are associated with the Program Types described in the Program Policies. The Partner Program does not provide
distribution rights to the Partner for the Services, nor does it contemplate any kind of reseller relationship between
SFDC and Partner, which are governed by separate and additional SFDC agreements and application processes.
“
Partner Services
” means the online, Web-based applications and platform to facilitate Partner’s partner relationship
with SFDC and available via www.salesforce.com and/or other designated websites, that are provided to Partner in
accordance with this Agreement and/or Partner’s participation in a Program Type, including associated offline
components, but excluding any Non-SFDC Applications. Partner Services includes, but is not limited to, the Partner
Community, AppExchange and Partner training resources.
“
Partner Tier
” means Partner’s level in certain Program Types. Partner Tiers are described more fully in the Program
Policies and are subject to change from time to time.
“
Partner User
” shall mean an individual who is authorized by Partner to use the Services or Partner Services
(including Partner Community) that SFDC makes available to Partner, and to whom Partner (or, when applicable,
SFDC at Partner’s request) has supplied a user identification and password (for Services or Partner Services utilizing
authentication). Partner Users may include, for example, employees, consultants, contractors and agents of Partner,
and third parties with which Partner transacts business.
“
Program Benefits
” means the materials and/or services that may be provided to Partner under this Agreement as
part of Partner’s participation in a Program Type. Certain Program Benefits may be subject to payment of additional
fees.
“
Program Fees
” means collectively, any fees that Partner must pay SFDC for participation in a Program Type, or for
Program Benefits, as further described in the Program Policies.
“
Program Policies
” means the terms describing the Partner Program, Program Types, Partner Tiers, Program
Benefits, and other policies governing Partner’s participation in the Partner Program, as set forth in this SPPA and at
http://p.force.com/policies
“
Program Type
” means a category or sub-category of the Partner Program that has a particular scope and particular
set of Program Benefits, as set forth in this SPPA and the Program Policies. Program Types may have multiple Partner
Tiers.
“
SFDC
” means the salesforce.com company as set forth in
Section 16
(Parties, Legal Notices, Governing Law and
Jurisdiction) of this SPPA.
“
Services
” means the products and services that are ordered by Customer under an Order Form (or otherwise
provided to Partner in accordance with this Agreement) and made available online by SFDC, including associated
SFDC offline or mobile components, as described in the Documentation. Services exclude Content and Non-SFDC
Applications.
1.
Program Overview
1.1.
Enrollment.
To participate in the Partner Program, Partner must be enrolled in a Program Type. To
enroll in a Program Type, Partner must fulfill the Participation Qualifications set forth in the applicable Program Type’s
Program Policies, and be accepted for the applicable Program Type by SFDC.
1.2.
Fees.
Participation in the Partner Program, including assignment to certain Partner Types and
Partner Tiers or the receipt of certain Program Benefits, may be subject to Program Fees as described in the Program
Policies. Payment obligations are non-cancelable and fees paid are non-refundable.
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1.3.
Partner Affiliates.
Partner Affiliates may hold themselves out as Partners of SFDC solely as
expressly permitted pursuant to the Program Policies for such Partner Program, and only for the purposes of such
Partner Program, subject to Partner’s obligations with respect to the disclosure of third parties in Section 2.6
(Disclosure of Third Parties). Unless otherwise agreed by the Parties in writing, Partner is responsible for ensuring
any Partner Affiliate holding itself out as a Partner of SFDC complies with the terms of this SPPA and first completes
SFDC’s compliance and due diligence forms and receives SFDC’s written approval of such forms (before holding
itself out as a Partner of SFDC), available upon request by logging a case in the Partner Community. Participation
by Partner Affiliates in this manner may be denied or revoked at any time by SFDC in SFDC’s sole discretion.
Alternatively,
each Partner Affiliate that desires to be a member of the Partner Program must separately agree to this
Agreement and take such other steps to enroll in the applicable Program Type as are specified in the Program
Policies.
1.4.
Opt-in to Marketing.
Partner’s participation in the Partner Program will serve as an opt-in to receive
SFDC’s marketing communications. Partner will be presumed to have provided appropriate notices and have
obtained appropriate consents, if required, from any persons or Partner Users who are signed up to the Partner
Program on Partner’s behalf. Partner may elect to opt-out from receiving SFDC’s marketing materials by contacting
SFDC directly.
1.5.
Partner-Sponsored Co-Marketing Activities and Expenses.
Partner may not sponsor and will not
be reimbursed for any co-marketing activities or events, unless Partner has first accepted the terms of the SFDC
Partner co-marketing online agreement set forth at http://p.force.com/spcma.
2.
Compliance
2.1. Compliance with Laws.
2.1.1.
Compliance with Applicable Laws
. In connection with this Agreement,
Partner shall comply, and shall ensure its employees, officers, directors, and any third parties
performing activities on Partner’s behalf comply, with all applicable laws and regulations, including,
without limitation, trademark and copyright laws and ICANN policies and procedures governing
domain names (“Applicable Laws”) and shall not engage in any deceptive, misleading, illegal or
unethical marketing activities, or activities that otherwise may be detrimental to SFDC, Customers,
the Services, or to the public. SFDC shall comply with Applicable Laws that are applicable to SFDC
generally (i.e., without regard to Partner’s and/or any Customer’s particular use of the Services or
Partner Services) in its performance of its obligations hereunder.
2.1.2.
Compliance with Anti-Corruption Laws.
Without limiting Section 2.1
above, in connection with the Agreement, Partner, and all employees, officers, and directors, and
any third parties working for Partner or performing activities on Partner’s behalf, (1) will comply with
the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and other applicable anti-corruption
laws and regulations (collectively, the “
Anti-Corruption Laws
”); and (2) shall keep accurate books,
accounts, and records. It is the intent of the Parties that no payments or transfers of anything of
value shall be made in connection with this Agreement that have the purpose or effect of public,
commercial or other bribery, or acceptance of or acquiescence in extortion, kickbacks, or other
unlawful or improper means of obtaining business or any improper advantage.
2.1.3.
Consequences of Violation.
Partner hereby acknowledges and agrees,
SFDC may terminate or suspend this Agreement immediately by written notice without any liability
to Partner: (1) upon any violation by Partner of this Section 2; or (2) circumstances causing SFDC
to believe, in good faith, that Partner, or any of its owners, directors, employees, or third parties
(including sub-contractors, sub-distributors, integrators, or other third parties), has engaged in
illegal conduct or unethical business practices, including any potential violations of the Anti-
Corruption Laws. Termination or suspension by SFDC under this section shall be in addition to,
and not in lieu of, SFDC’s other legal rights and remedies. If SFDC terminates or suspends the
Agreement under this section, SFDC may suspend or withhold any payments to Partner hereunder
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SFDC will not be liable for any claims, losses, or damages arising from or related to failure of Partner
to comply with the Anti-Corruption Laws or this Agreement or related to the termination or
suspension of this Agreement under this clause, and Partner will indemnify and hold SFDC
harmless against any such claims, losses, or damages.
2.2. Training.
Partner agrees that it has provided or will provide training and information to its officers,
directors, employees, and any third parties utilized by Partner in connection with performance of this Agreement
as necessary to ensure full compliance with the Anti-Corruption Laws and any other applicable laws and any
obligations set forth in this Section 2.
2.3. Certification.
Partner agrees that Partner, by and through an authorized officer, will periodically, at
SFDC’s request, complete SFDC’s Due Diligence Questionnaire and Compliance Certification and/or otherwise
certify compliance in writing with Partner’s obligations set forth in this Section 2. Partner may be subject to
additional due diligence, questions and training, as determined by SFDC in its sole discretion.
2.4. Reporting Potential Violations.
Consulting Partner agrees that it shall promptly inform SFDC’s
Legal Department (legalcompliance@salesforce.com) in writing should it or any of its officers, directors, or
employees learn of, or suspect, any act or circumstance that may violate applicable laws in connection with this
Agreement.
2.5. No Affiliation with Government Officials – Disclosure Obligation.
Partner affirms that (1) none
of its owners, directors, employees and, to its knowledge, third parties involved in the performance of this
Agreement is a Government Official or a Close Family Member of a Government Official with the ability, or
appearance of ability, to influence the performance of this Agreement; or that (2) it has fully described any such
relationship in writing to SFDC’s Legal Department (legalcompliance@salesforce.com) and received
acknowledgement by SFDC’s Legal Department of such disclosure. For purposes of this Agreement (A)
“Government Official” means an officer or employee of any government; officer or employee of any public
international organization; officer or employee of any department, agency, or instrumentality of any government or
of any public international organization; officer or employee of any government-owned or government-controlled
company; political party; political party official; or anyone, whether a private person or otherwise, acting in an official
capacity on behalf of any of the above or of any government entity and (B) “Close Family Member of a Government
Officials” means the Government Official’s spouse, the Government Official’s or the spouse’s grandparents,
parents, siblings, children, nieces, nephews, aunts, uncles, and first cousins; the spouse of any of the above; or
any other person who shares the same household with the Government Official. In the event that during the term
of the Agreement there is a change in the information described in this paragraph, Partner shall promptly disclose
such change to SFDC’s Legal Department in writing.
2.6. Disclosure of Third Parties.
Partner shall not utilize or employ any Affiliate, third-party
subcontractor, consultant, agent, or other intermediary in connection with the performance of lead generation and
referral activities hereunder or in connection with the resale of SFDC Services to government entities (pursuant to
a separate agreement between SFDC and Partner) without prior review and approval by SFDC. To request
SFDC’s review and approval, include details of the foregoing in the due diligence documentation requested by
SFDC at the time of Partner onboarding or by logging a case via the Partner Community. SFDC will have the
authority to accept or reject any proposed third party.
2.7. Inspection Rights.
SFDC shall be allowed reasonable access to inspect, audit, and make copies of
Partner’s relevant books, records, and accounts, and may use third-parties, such as external audit firms, to assist
in any such activities. Such inspection and audit may include interviews of relevant Partner personnel. Such audit
may be conducted during regular business hours at Partner's offices and shall not unreasonably interfere with
Partner's business activities. Partner agrees that it will fully cooperate with SFDC’s reasonable requests in any
such audit.
2.8. Export Compliance.
SFDC and Partner each represents that it is not named on any U.S.
government denied-parties list. Neither party will access or use any Partner Services, Program Benefits or
Confidential Information provided to it hereunder in a U.S.-embargoed country or region (currently the Crimea
region, Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or governmental regulation.
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3.
Services, Compliance and Technical Training
3.1.
Partner’s sales representatives must be reasonably capable of effectively delivering SFDC’s value
proposition and must be generally knowledgeable about the Services and their interfaces, advantages and high-level
functionality. Other requirements regarding Partner Services, compliance and technical training vary by Program
Type, and are described in the Program Policies.
4.
Intellectual Property Ownership
4.1.
Technology.
Subject to the limited licenses and rights set forth in this Agreement, nothing in this
Agreement transfers or assigns to either Party any of the other Party’s intellectual property or other proprietary rights
in the other Party’s technology, products or services. The intellectual property and other proprietary rights in SFDC’s
technology, products and services, including without limitation the AppExchange, the Services and the Partner
Services, are defined herein as “
SFDC’s Property
.”
4.2.
SFDC Trademarks.
SFDC’s marks, including those identified in SFDC’s Partner Branding
Guidelines, and otherwise used on SFDC’s websites, are SFDC’s trademarks or service marks and may not be used
in any manner except as expressly permitted in this Agreement or the applicable Program Policies, or with SFDC’s
prior written consent. Consistent with SFDC’s trademark rights and usage policies, Partner shall not incorporate
“force,” “cloud” (unless permitted by the SFDC Partner Branding Guidelines) or “chatter” or any other SFDC mark or
brand in any trade name, brand name, domain name, or other source identifying term. Partner shall not bid on or
purchase any keyword which is SFDC’s trademark, including without limitation SALESFORCE.COM
®
,
SALESFORCE
®
, FORCE.COM
®
, FORCE
®
, APPEXCHANGE
®
, CHATTER
®
, SERVICE CLOUD
®
or SALES CLOUD
®
in any keyword advertising service (such as, for example, Google AdWords) except with SFDC’s prior written consent.
Partner may not publish any advertisement that includes any SFDC trademarks without prior review and approval of
Partner’s proposed ad and/or related website by SFDC’s legal and Search Engine Marketing teams. Partner may
forward requests for review and approval to trademarks@salesforce.com.
4.3.
Partner Trademark License.
Partner grants SFDC a nonexclusive, nontransferable, non-
sublicensable, royalty-free license to use, for the purpose of identifying and promoting Partner’s participation in
SFDC’s Partner Programs and in connection with SFDC’s rights, duties and obligations under this Agreement,
Partner’s marks including Partner’s company name, and, if applicable, Partner’s AppExchange publisher name and
any AppExchange listing names, and any other marks or logos associated therewith or otherwise used by Partner
within the Salesforce ecosystem (“
Partner’s Marks
”). Partner may withdraw its approval of any use of the Partner’s
Marks at any time in its sole discretion upon written notice to SFDC, which withdrawal shall be effective promptly but
in no case more than thirty (30) days from the date of Partner’s notice sent in accordance with Section 16.2 (Manner
of Giving Notice) below, provided that no such withdrawal will require the recall of any previously published or
distributed materials.
4.4.
Competitive Applications.
Subject to SFDC’s and Partner’s respective rights and obligations under
this Agreement, SFDC acknowledges that Partner and/or other parties may develop and publish applications that are
similar to or otherwise compete with the Services or other SFDC applications, products and services, and Partner
acknowledges that SFDC and/or other parties may develop and publish applications that are similar to or otherwise
compete with Partner’s Applications, products or services.
5.
Restrictions
5.1.
Restrictions on Use of the Partner Services.
Partner is responsible for all activities that occur in
Partner User accounts, and for its and Partner Users’ compliance with this Agreement. In no event shall Partner (i)
sell, resell, license, sublicense, distribute, make available, rent or lease or otherwise commercially exploit to any third
party (except as expressly provided in this SPPA) the Partner Services in any way; (ii) use the Partner Services or a
Non-SFDC Application 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, (iii) use the Partner Services or a Non-SFDC Application to
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send or store any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms,
time bombs and Trojan horses; (iv) modify or make derivative works based upon the Partner Services; (v) create
Internet “links” to the Services or Partner Services, or “frame” or “mirror” them; (vi) permit direct or indirect access to
or use of any Services or Partner Services in a way that circumvents a contractual usage limit, or use any of the
Partner Services to access or use any of our intellectual property except as permitted under this Agreement;
(vii) interfere with or disrupt the integrity of performance of the Partner Services or the data contained therein; (viii)
access Partner Services in order to build a competitive product or service or to benchmark with a non-SFDC product
or service or (ix) reverse engineer the Partner Services; (x) share data or content from the Partner Services with
SFDC competitors; (xi) attempt to gain unauthorized access to any Partner Services or Content or related systems or
networks; (xii) copy Partner Services or any part, feature, function or user interface thereof or (xiii) recruit or market
directly to other Partner users using data, content or contact information obtained through the Partner Community.
Partner User subscriptions cannot be shared or used by more than one individual user but may be reassigned from
time to time to new users who are replacing former users who have terminated employment or otherwise changed
job status or function and no longer need to use the Partner Services under this Agreement. Partner’s or a Partner
User’s intentional violation of the foregoing, or any use of the Partner Services in breach of this Agreement by Partner
or Partner’s Users that in SFDC’s judgment imminently threatens the security, integrity or availability of SFDC’s
services, may result in SFDC’s immediate suspension of the Partner Services. SFDC will use commercially
reasonable efforts under the circumstances to provide Partner with an opportunity to remedy such violation or threat
prior to any such suspension.
5.2.
Restrictions on use of the Services.
Partner acknowledges and agrees that Partner’s use of any
Services provided to Partner in connection with Partner’s activities hereunder is governed by the terms of the
salesforce.com Master Subscription Agreement found at https://www.salesforce.com/company/msa.jsp, unless
Partner has a written master subscription agreement executed by SFDC for such Services as referenced in the
Documentation, in which case such written salesforce.com master subscription agreement will govern (as applicable,
the “
MSA
”).
5.3.
Additional Restrictions
. Without affecting any other restrictions set forth in the MSA and this SPPA,
Partner’s use of any Program Benefits, including SFDC’s Property provided to Partner hereunder, is subject to
additional restrictions. Specifically, Partner may
not
:
●
Remove or modify any program markings or any notice of SFDC’s or SFDC’s licensors’ proprietary rights;
●
Make the Services, any materials delivered hereunder, or any materials resulting from the Services available in
any manner to any third party for use in the
third party’s business operations, other than as expressly permitted
herein or in the Program Policies for Partner’s assigned Program Type;
●
Use SFDC’s Property in a manner that misrepresents Partner’s relationship with SFDC or is otherwise misleading
or that reflects negatively on SFDC or may harm SFDC’s rights therein;
●
Modify in any way any of SFDC’s trademarks and/or associated logos (e.g., by inserting Partner’s company or
brand name inside SFDC’s proprietary “Cloud” logo OR by co-branding products or services by blending SFDC’s
corporate logo with Partner’s corporate logo without SFDC’s permission);
●
Use or duplicate SFDC’s Property provided to Partner for any purpose other than as specified in this Agreement
or make SFDC’s Property available to unauthorized third parties;
●
Use SFDC’s Property for Partner’s own internal business operations, or use or make SFDC’s Property available
in any manner to any third party for use in the third party’s business operations or for any other commercial or
production use, other than as expressly permitted in this Agreement applicable to Partner’s assigned Program
Type and/or Partner Tier; or
●
Use the Services, Partner Community, AppExchange or SFDC Property in violation of SFDC’s Acceptable Use
and External-Facing Services Policy found at http://www.salesforce.com/company/legal/agreements.jsp as may
be updated from time to time.
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6.
Warranties; Disclaimers and Remedies
EXCEPT AS EXPRESSLY SET FORTH HEREIN, SFDC MAKES NO REPRESENTATION OR WARRANTY OF
ANY KIND REGARDING THE SERVICES, THE PARTNER PROGRAM (INCLUDING WITHOUT LIMITATION THE
PARTNER SERVICES, PARTNER COMMUNITY, APPEXCHANGE AND PROGRAM BENEFITS), WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW INCLUDING WITH RESPECT TO THE PERFORMANCE, FUNCTIONALITY, QUALITY, BENEFITS OR
AVAILABILITY OF ALL OF THE FOREGOING. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND
AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. IN NO EVENT WILL SFDC BE LIABLE TO
PARTNER (OR TO ANY INDIVIDUAL OR ENTITY AFFILIATED WITH PARTNER) FOR ANY CLAIM, LOSS OR
DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE SERVICES, THE PARTNER
SERVICES OR ANY OTHER SFDC PRODUCT OR SERVICE, MADE AVAILABLE, ACCESSED OR USED AS
PART OF PARTNER’S PARTICIPATION IN THE PARTNER PROGRAM.
7.
Relationship of the Parties
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship
between Partner and SFDC, notwithstanding the use of the term “partner” in this Agreement. Neither Party will
represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party,
nor to represent the other Party as agent, employee, franchisee, or in any other capacity. There are no third-party
beneficiaries to this SPPA. Partner shall not make any proposals, promises, warranties, guarantees, or
representations on SFDC’s behalf or in SFDC’s name.
8.
Services Feedback
Partner grants SFDC a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable, license to use and
incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback
provided by Partner relating to the operation of SFDC’s or its Affiliate’s services.
9.
Term, Termination & Renewal
9.1.
Term.
This Agreement starts on the Effective Date and shall remain in effect unless terminated as
set forth herein, provided that if Partner joins a Partner Program(s) and its participation in all such Partner Programs
terminates, this Agreement shall automatically terminate as of the end date of its participation in the last Partner
Program.
9.2.
Termination for Cause.
Either Party may immediately terminate this SPPA upon written notice to
the other Party if (i) the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to
insolvency, or makes an assignment for the benefit of creditors, (ii) the other Party publicly announces (including by
reporting it in SEC filings) that it has reached agreement to acquire or be acquired by the terminating Party’s
competitor, (iii) the other Party breaches its confidentiality obligations under this SPPA or infringes or misappropriates
the terminating Party’s intellectual property rights, (iv) it determines, based on one or more Customer or prospective
Customer complaints, that the other Party’s actions or statements creates a significant risk of harm to the terminating
Party’s reputation or customer relationships, (v) the other Party has committed fraud or misrepresentation with respect
to entering into and/or the performance of this Agreement, (vi) a Party learns of circumstances that give it reason to
believe that the other Party has engaged in illegal conduct or unethical business practices in connection with
performance of this Agreement, (vii) the other Party, or any of its owners or employees responsible for providing
services under this Agreement have become the target of an investigation or prosecution by any governmental
authority for alleged corruption or other violation of laws, or (viii) the other Party has violated
Section 2
(Compliance
with Applicable Laws) above including, in the case of SFDC, Partner’s violating SFDC’s rights under trademark and
copyright laws and/or ICANN policies and procedures governing domain names. Subject to the foregoing, either
Party may terminate this SPPA upon thirty (30) days’ written notice to the other Party of such other Party’s material
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breach if the breach is not cured during that period. SFDC may suspend Partner’s assigned Program Type Program
Benefits during any period in which Partner is in breach of this Agreement, including its payment obligations.
Termination of this SPPA for cause shall be in addition to, and not in lieu of either Party’s other legal rights and
remedies.
9.3.
Termination for Convenience.
Subject to
Section 9.4
(Effect of Termination) below, SFDC may
terminate this SPPA for convenience upon thirty (30) days’ written notice to Partner.
9.4.
Effect of Termination
. Upon termination or expiration of this SPPA, Partner shall cease to be a
participant in the Partner Program and all of Partner’s rights to receive the Program Benefits detailed in this
Agreement, and to use SFDC’s Property shall cease. If SFDC terminates for convenience under
Section 9.3
(Termination for Convenience) or Partner terminates for cause under
Section 9.2
(Termination for Cause), SFDC will
refund the pro-rated portion of any pre-paid Program Fees covering the period following such termination. Provisions
that survive termination or expiration include those relating to limitation of liability, payment, and others which by their
nature are intended to survive. For clarity, expiration or termination of this SPPA will not relieve Partner of its obligation
to pay the portion of the Program Fees associated with its participation in the Partner Program leading up to the
effective date of the expiration or termination.
10.
Confidentiality
10.1.
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. SFDC’s Confidential Information includes, but is
not limited to, the AppExchange; SFDC’s and third party applications; any non-public information Partner has access
to through the Partner Community; the Services; Customer Data to which Partner has access through SFDC’s
systems by virtue of participating in the Partner Program; and the terms and conditions of this Agreement. Partner’s
Confidential Information includes, but is not limited to Partner Applications and Partner’s business and marketing
plans, technology and technical information; products designs; and business processes. Confidential Information of
each Party includes the discussions regarding the partner relationship. 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 without breach of any
obligations owed to the Disclosing Party.
Notwithstanding the foregoing, the protections set forth in this Agreement
for Customer Data remain in full force and effect even where such Customer Data meets the criteria in (i) - (iv) above.
10.2.
Protection of Confidential Information.
The Receiving Party will use the same degree of care that
it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care)
to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement
and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of
the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes
consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing
protections not materially less protective of the Confidential Information than those herein. Neither party will disclose
the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants
without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate,
legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance
with this “Confidentiality” section.
10.3.
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
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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.
11.
LIMITATION OF LIABILITY
11.1
Limitation of Liability. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SFDC
TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED
THE PROGRAM FEES PAID BY PARTNER IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT OUT OF
WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN
CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. NOTWITHSTANDING THE
FOREGOING, THE ABOVE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO SFDC’S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 12.2 (INDEMNIFICATION BY SFDC) BELOW.
11.2
Exclusion of Consequential and Related Damages. IN NO EVENT WILL SFDC OR ITS AFFILIATES
HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS,
REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS
INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND
REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SFDC OR ITS AFFILIATES HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES OR IF SFDC OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF
ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED
BY LAW.
12.
INDEMNIFICATION
12.1.
Indemnification by Partner.
Partner will defend SFDC against any claim, demand, suit or
proceeding made or brought against SFDC by a third party (i) alleging that Partner’s products or services, or any
data that Partner enters into the Services or the Partner Community, infringe the intellectual property rights of, or
have otherwise harmed, such third party; (ii) based upon a representation made by Partner to such third party; or
(iii) based upon a Partner’s breach of this Agreement (each a “
Claim Against SFDC
”), and will indemnify SFDC
from any damages, attorney fees and costs finally awarded against SFDC as a result of, or for any amounts paid by
SFDC under a settlement approved by Partner in writing of, a Claim Against SFDC, provided SFDC (a) promptly
gives Partner written notice of the Claim Against SFDC, (b) gives Partner sole control of the defense and settlement
of the Claim Against SFDC (except that Partner may not settle any Claim Against SFDC unless it unconditionally
releases SFDC of all liability), and (c) gives Partner all reasonable assistance, at Partner’s expense
.
12.2.
Indemnification by SFDC.
SFDC will defend Partner against any claim, demand, suit or
proceeding made or brought against Partner by a third party alleging that the Services, or the Partner Community,
infringes or misappropriates the intellectual property rights of such third party (a “
Claim Against Partner
”), and will
indemnify Partner from any damages, attorney fees and costs finally awarded against Partner as a result of, or for
amounts paid by Partner under a settlement approved by SFDC in writing of, a Claim Against Partner, provided
Partner (a) promptly gives SFDC written notice of the Claim Against Partner, (b) gives SFDC sole control of the
defense and settlement of the Claim Against Partner (except that SFDC may not settle any Claim Against Partner
unless it unconditionally releases Partner of all liability), and (c) gives SFDC all reasonable assistance, at SFDC’s
expense. If SFDC receives information about an infringement or misappropriation claim related to the Services or
Partner Community SFDC may in its discretion and at no cost to Partner (i) modify the Services or Partner
Community so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Partner’s or
Customer’s (as applicable) continued use of that Service in accordance with this Agreement; or (iii) terminate any of
Partner’s or Customer’s (as applicable) rights for that Service upon thirty (30) days’ written notice and refund
Partner or Customer (as applicable) any prepaid fees covering the remainder of the term of the terminated Services.
The above defense and indemnification obligations do not apply to the extent a Claim Against Partner arises from (i)
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Content, a Non-SFDC Application or Partner’s breach of this Agreement, the Documentation or applicable Order
Forms; or (ii) the use or combination of the Services, the Partner Community, or any part thereof with software,
hardware, data, or processes not provided by SFDC, if the Services or Partner Community, or use thereof, would
not infringe without such combination.
12.3.
Exclusive Remedy
. This “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.
13.
Cooperation on Disputes
Partner shall reasonably cooperate with SFDC in regard to any inquiry, dispute or controversy in which SFDC may
become involved and of which Partner may have knowledge, including with respect to disclosure of relevant
documents and financial information, and interviews of Partner’s personnel. Such obligation shall continue after the
expiration or termination of this Agreement.
14.
Entire Agreement
Partner agrees that this SPPA and the information which is incorporated into this SPPA by written reference (including
reference to information contained in a URL and/or referenced policies and/or guides), or any applicable Order Form
for Program Fees or the purchase of certain Program Benefits, or addendum attached hereto, constitutes the
complete agreement between the Parties relating to Partner’s participation in the Partner Program. This Agreement
supersedes and replaces any prior representations, written or oral, regarding Partner’s participation in the Partner
Program as well as any other online or click-through agreement that Partner may have previously entered into with
SFDC governing Partner’s participation in the Partner Program before the SPPA version date provided above. If any
term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. To the
extent of any conflict or inconsistency between the provisions in the body of this SPPA and any addendum or exhibit
hereto, the terms of such addendum or exhibit shall prevail. To the extent of any conflict or inconsistency between
the provisions in the body of this SPPA and any Order Form, the terms of the Order Form shall prevail. The Parties
agree that any term or condition stated in a Partner purchase order or in any other Partner order documentation
(excluding Order Forms) is void. This SPPA and any Order Form that SFDC and Partner enter into may not be
modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted
electronically by the party against whom the modification, amendment or waiver is to be asserted, provided however,
that SFDC may modify or amend the Program Policies from time to time as permitted therein.
15.
Assignment
Neither Partner nor SFDC may assign any rights or obligations under this Agreement without the prior written consent
of the other (not to be unreasonably withheld or delayed), provided either Party may assign this Agreement without
consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or
substantially all of the assigning Party’s assets not involving a direct competitor of the other Party.
16.
Parties, Legal Notices, Governing Law and Jurisdiction
16.1.
General.
The SFDC entity that Partner is contracting with under this Agreement, the address to which
Partner should direct legal notices arising under or relating to this Agreement, the law that will apply in any lawsuit
arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on
where Partner is domiciled as follows:
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If Partner is
domiciled in:
The SFDC entity
entering into this
Agreement is:
Notices should be addressed
to:
Governing law is: Courts with
exclusive
jurisdiction are:
The United States of
America, Mexico or
a Country in Central
or South America or
the Caribbean
salesforce.com, inc., a
Delaware corporation
Salesforce Tower, 415 Mission
Street, 3rd Floor, San Francisco,
California, 94105, U.S.A., attn:
VP, Worldwide Sales
Operations, with a copy to attn:
General Counsel
California and
controlling United
States federal law
San Francisco,
California, U.S.A.
Canada
salesforce.com
Canada Corporation, a
Nova Scotia
corporation
Salesforce Tower, 415 Mission
Street, 3rd Floor, San Francisco,
California, 94105, U.S.A., attn:
VP, Worldwide Sales
Operations, with a copy to attn:
General Counsel
Ontario and
controlling
Canadian federal
law
Toronto, Ontario,
Canada
France
salesforce.com
France, a French
S.A.S company with a
share capital of 37,000
€, registered with the
Paris Trade Registry
under number 483 993
226 RCS Paris,
Registered office: 3
Avenue Octave
Gréard, 75007 Paris,
France
Salesforce.com Sarl, Route de la
Longeraie 9, Morges, 1110,
Switzerland, attn: Director,
EMEA Sales Operations, with a
copy to attn.: Legal Department -
Service Juridique, 3 Avenue
Octave Gréard, 75007 Paris,
France
France
Paris, France
Germany
salesforce.com
Germany GmbH, a
limited liability
company, incorporated
in Germany
Salesforce.com Sarl, Route de la
Longeraie 9, Morges, 1110,
Switzerland, attn: Director,
EMEA Sales Operations, with a
copy to attn.: Legal Department -
Erika-Mann-Strasse 31-37,
80636 München, Germany
Germany
Munich, Germany
Italy
Salesforce.com Italy
S.r.l., an Italian limited
liability company
having its registered
address at Piazza
Filippo Meda 5, 20121
Milan (MI), VAT /
Fiscal code n.
04959160963
Salesforce.com Sarl, Route de la
Longeraie 9, Morges, 1110,
Switzerland, attn: Director,
EMEA Sales Operations, with a
copy to attn.: Legal Department
Italy
Milan, Italy
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Spain
Salesforce Systems
Spain, S.L.U., a limited
liability company
incorporated in Spain
Salesforce.com Sarl, Route de la
Longeraie 9, Morges, 1110,
Switzerland, attn: Director,
EMEA Sales Operations, with a
copy to attn.: Legal Department -
Paseo de la Castellana 79,
Madrid, 28046, Spain
Spain
Madrid, Spain
United Kingdom
Salesforce UK Ltd
(f/k/a salesforce.com
EMEA Limited), a
limited liability
company incorporated
in England
Salesforce.com Sarl, Route de
la Longeraie 9, Morges, 1110,
Switzerland, attn: Director,
EMEA Sales Operations, with a
copy to attn: Legal Department,
Salesforce UK Ltd (f/k/a
salesforce.com EMEA Limited),
Floor 26 Salesforce Tower, 110
Bishopsgate, London, EC2N
4AY, United Kingdom
England
London, England
A Country in Europe,
the Middle East or
Africa, other than
France, Germany,
Italy, Spain, and the
United Kingdom
SFDC Ireland Limited,
a limited liability
company incorporated
in Ireland
Salesforce.com Sarl, Route de la
Longeraie 9, Morges, 1110,
Switzerland, attn: Director,
EMEA Sales Operations, with a
copy to attn.: Legal Department -
3rd and 4th Floor, 1 Central Park
Block G, Central Park,
Leopardstown, Dublin 18,
Ireland
England
London, England
Japan
Kabushiki Kaisha
Salesforce.com, a
Japan corporation
JP Tower 12F, 2-7-2
Marunouchi, Chiyoda-ku, Tokyo
100-7012, Japan, attn: Senior
Director, Japan Sales
Operations, with a copy to attn:
General Counsel
Japan
Tokyo, Japan
A Country in Asia or
the Pacific region,
other than Japan,
Australia or New
Zealand
Salesforce.com
Singapore Pte Ltd, a
Singapore private
limited company
5 Temasek Boulevard #13-01,
Suntec Tower 5, Singapore,
038985, attn: Director, APAC
Sales Operations, with a copy to
attn: General Counsel
Singapore
Singapore
Australia or New
Zealand
SFDC Australia Pty Ltd
201 Sussex Street, Darling Park
Tower 3, Level 12, Sydney NSW
2000, attn: Senior Director,
Finance with a copy to attn:
General Counsel
New South Wales,
Australia
New South
Wales, Australia
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16.2.
Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions
and approvals hereunder will be in writing and will be effective upon (a) personal delivery, (b) the second business
day after mailing, or (iii) except for notices of termination or an indemnifiable claim (“
Legal Notices
”), which shall
clearly be identifiable as Legal Notices, the day of sending by email. Notices to Partner shall be addressed to the
contact designated by Partner for Partner’s relevant partner account, and in the case of billing-related notices, to the
relevant billing contact designated by Partner. Notices to SFDC that are not Legal Notices shall be addressed to the
entity Partner is contracting with, as described above, and to the attention of the Partner Program Manager.
16.3.
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 above.
16.4.
Local Law Requirements: France.
With respect to Partners domiciled in France, in the event of any
conflict between any statutory law in France applicable to Partner, and the terms and conditions of this Agreement,
the applicable statutory law shall prevail.
16.5.
Local Law Requirements: Germany
. With respect to Partners domiciled in Germany, the following
changes to the above terms will apply:
16.5.1.
Section 6 “WARRANTIES; DISCLAIMERS AND REMEDIES” is replaced with the following
section:
6.
Partner Program and Content
SFDC is not responsible to make the Services, the
Partner Program (including without limitation the Partner Services, Partner Community
AppExchange and Program Benefits), Content or any other SFDC product or service
constantly available and Partner understands that all of the foregoing are provided “As Is”.
SFDC is not reviewing Content, its details, or its compliance with applicable laws and
regulations, and is not ensuring that Content is accurate, up to date, or complete.
16.5.2.
Section 11 “LIMITATION OF LIABILITY” is replaced with the following section:
11.
Limitation of Liability for Partners Domiciled in Germany
11.1 Unlimited Liability.
SFDC shall be liable without limitation
(a)
in the event of willful misconduct or gross negligence,
(b)
within the scope of a guarantee taken over by SFDC,
(c)
in the event that a defect is maliciously concealed,
(d)
in case of an injury to life, body or health,
(e)
according to the German Product Liability Law,
(f)
for any indemnification obligation set forth in Section 12.2 (Indemnification
by SFDC).
11.2 SFDC’s Liability for Breach of Cardinal Duties
. If cardinal duties of SFDC are
infringed due to slight negligence and if, as a consequence, the achievement of the objective
of this Agreement, or in the case of a slightly negligent failure to comply with duties, the very
discharge of which is an essential prerequisite for the proper performance of this Agreement,
SFDC’s liability shall be limited to foreseeable damage typical for the contract. In all other
respects, any liability of SFDC for damage caused by slight negligence shall be excluded.
11.3 Liability Cap.
Unless SFDC is liable in accordance with “Unlimited Liability” section
above, in no event shall the aggregate liability of SFDC together with all of its Affiliates arising
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out of or related to this Agreement exceed the Program Fees paid by Partner in the 12 months
preceding the first incident out of which the liability arose.
11.4 Scope.
With the exception of liability in accordance with the “Unlimited Liability” section,
the above limitations of liability shall apply to all claims for damages, irrespective of the legal
basis including claims for tort damages. The above limitations of liability also apply in the
case of claims for Partner’s damages against SFDC’s employees, agents or bodies.
16.6.
Local Law Requirements: Italy.
With respect to Partners domiciled in Italy, the following new
Sections 16.6.1 “Invoicing and Payment” and 16.6.2 “Compliance with Anti-Corruption Laws” are added to this
Agreement:
16.6.1.
Invoicing and Payment
16.6.1.1
Invoicing and Payment.
To the extent that Partner is obligated to pay any fees pursuant to
this Agreement, the Parties acknowledge that any invoices under this Agreement also are to be
submitted electronically by SFDC in accordance with “Electronic Invoicing” section through the
Agenzia delle Entrate’s Exchange System (“SDI” or “Sistema di Interscambio”) and any delay due to
the SDI shall not affect the payment term for such invoice. Partner shall be responsible for providing
complete and accurate billing and contact information to SFDC and shall notify SFDC of any changes
to such information.
16.6.1.2.
Electronic Invoicing
. The invoice will be issued in electronic format as defined in article 1,
paragraph 916, of Law no. 205 of December 27, 2017, which introduced the obligation of electronic
invoicing, starting from January 1, 2019, for the sale of goods and services performed between
residents, established or identified in the territory of the Italian State. To facilitate such electronic
invoicing, Partner shall provide to SFDC at least the following information in writing: Partner full
registered company name, registered office address, VAT number, tax/fiscal code and any additional
code and/or relevant information needed. In any event, the parties shall cooperate diligently to enable
such electronic invoicing process. Any error due to the provision by Partner of incorrect or insufficient
invoicing information preventing (a) SFDC to successfully submit the electronic invoice to the SDI or
(b) the SDI to duly and effectively process such invoice or (c) which, in any event, requires SFDC to
issue an invoice again, shall not result in an extension of the payment term applicable to such invoice,
and such term shall still be calculated from the date of the original invoice. SFDC reserves the right
to provide any invoice copy in electronic form via email in addition to the electronic invoicing described
herein.
16.6.1.3.
Split Payment.
If subject to the “split payment” regime, Partner shall be exclusively
responsible for payment of any VAT amount due, provided that Partner shall confirm to SFDC the
applicability of such regime and, if applicable, Partner shall provide proof of such VAT payment to
SFDC.
16.6.2 Anti-Corruption Laws and Compliance with Legislative Decree 231/2001.
For the
avoidance of doubt, the “Applicable Laws” referenced in Section 2.1 of the Agreement include,
without limitation, anti-corruption legislation in force in Italy (as amended from time to time). Partner
acknowledges that SFDC has adopted an Organization, Management and Control Model pursuant
to Legislative Decree 231/2001 to prevent crimes provided for therein and commits to comply with
the principles contained in the above Legislative Decree 231/2001 and in the SFDC Code of
Conduct which is available at the following
link:
https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/compliance%20doc
uments/salesforce-code-of-conduct.pdf
. In particular, Partner also acknowledges and agrees that
the violation of the principles and the provisions contained in Legislative Decree 231/2001 and in
the SFDC Code of Conduct by Partner may entitle SFDC, based on the severity of the violation, to
terminate this Agreement for cause.
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16.6.3.
IF YOU ARE DOMICILED IN ITALY, YOU MAY NOT ACCESS THE PARTNER COMMUNITY
OR PARTICIPATE IN THE PARTNER PROGRAM UNTIL YOU HAVE SIGNED AN ADDITIONAL
ACKNOWLEDGMENT PROVIDED TO YOU BY SFDC.
16.7.
Local Law Requirements: Spain
. With respect to Partners domiciled in Spain, in the event of any
conflict between any statutory law in Spain applicable to Partner, and the terms and conditions of this Agreement, the
applicable statutory law shall prevail.
_________________
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ADDENDUM A
AppExchange Addendum
In addition to the above Term and Conditions, this AppExchange Addendum of the SPPA shall apply to, and govern,
all Partner Applications and Partner’s Consulting Services Listings on the AppExchange.
1.
Definitions Applicable to AppExchange Addendum.
“
AppExchange Application
” means a Web-based, on-demand application or component and/or downloadable
software application or component that interoperates with certain of the Services and that has been approved by
SFDC for listing on the AppExchange.
“
Consulting Services Listing
” means a listing on the AppExchange describing systems integration services and
similar consulting services a Partner offers to Customers.
“
Platform
”
means the Services currently branded as Force.com and/or Heroku comprising SFDC’s Web-based
technology platform that includes a user interface, operating system, customization and integration capabilities for
SFDC’s on-demand customer relationship management services, and a framework for development and deployment
of on-demand applications.
“
Platform API
” means SFDC’s application programming interface that supports interoperation of the Platform with
Non-SFDC Applications, including Partner Applications.
“
Partner Application
” means any application and/or component that Partner submits to SFDC for review and/or
listing as an AppExchange Application under this Agreement.
2.
AppExchange Listing Program Benefit Overview.
A.
Overview
. Partner is responsible for evaluating and testing each Partner Application as to its
technology, functionality, performance, security, and user interface before the applicable Partner Application is
submitted to SFDC for review and listed on the AppExchange. SFDC reserves the right to conduct any type of review
of all Partner Applications and Consulting Services Listings. SFDC may adopt and change its AppExchange review
standards and processes in its sole discretion. Partner must submit each Partner Application and Consulting Services
Listing to SFDC for review or listing on the AppExchange through SFDC’s online submission process. Partner
acknowledges that Partner is solely responsible for, and that SFDC has no responsibility or liability of any kind for,
the development, installation, operation, or maintenance of Partner Applications or Partner Consulting Services.
Partner further represents that Partner shall be solely responsible for the accuracy, legality, and appropriateness of
any content or information Partner submits to, or makes available through, the AppExchange. SFDC reserves the
right, for any reason at any time (as SFDC decides in its sole discretion), to refuse to list a Partner Application or post
a Consulting Services Listing on, and/or to remove any Partner Applications or Consulting Services Listings from, the
AppExchange.
By using the AppExchange to list one or more Partner Applications, Partner agrees that Partner will (i) ensure any
user documentation relating to a Partner Application accurately reflects its functionality, including detailed security
controls and safeguards relating thereto, (ii) ensure Partner’s user documentation accurately describes the applicable
Partner Application, including to what extent functionality resides within and outside the Platform, and (iii) maintain at
all times a current privacy statement available on Partner’s website which details Partner’s collection, processing and
handling of Partner’s customer’s data, including any personally identifiable information relating to Partner Application
users. Partner shall promptly notify SFDC and all users of each Partner Application in writing prior to making any
update to Partner’s privacy policy and related disclosures associated with item (ii) above.
B.
Partner Application Security Review.
SFDC may conduct periodic security evaluations of each
Partner Application (“
Security Reviews
”), which may include a qualitative assessment involving review of a
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questionnaire completed by Partner, an interview with appropriate Partner personnel, and/or security testing. SFDC
conducts such Security Reviews for its own benefit and Partner may not rely on, publicly disclose or promote, a
Partner Application's successful passage of such Security Review. Partner shall not distribute a Partner Application
unless such Partner Application has successfully passed the Partner Application Security Review. There may be fees
associated with such review. If the Partner Application, in whole or in part, runs outside SFDC’s systems, security
testing may include remote application-level security testing of the Partner Application, and network-level security
testing including a vulnerability threat assessment. SFDC may conduct such testing itself or through a third party.
SFDC will provide reasonable notice to Partner before starting such testing. SFDC will cooperate reasonably with
Partner to mitigate the effects of such testing on Partner’s business and operations. Partner agrees to cooperate
reasonably with such testing.
Despite the foregoing, such testing may in rare cases cause downtime or other
adverse effects on the Partner Application or Partner’s systems. Partner agrees that SFDC and its agents or
contractors conducting the testing will bear no responsibility or liability arising from such testing.
Any of
Partner Confidential Information to which SFDC obtains access in the course of a Security Review will be subject to
Section 10 (Confidentiality) of the SPPA. Partner acknowledges that if Partner is not participating in the Partner
Program with respect to a Partner Application, any security review conducted by SFDC with respect to such Partner
Application will be considered null and void, unless otherwise agreed to in writing by SFDC. SFDC reserves the right
to notify Customers that a Partner Application is not listed on the AppExchange or otherwise enrolled in the
AppExchange Program. Notwithstanding anything to the contrary contained herein, the status of SFDC’s review of a
Partner Application can be disclosed by SFDC at SFDC’s sole discretion.
C.
AppExchange Listings.
To the extent Partner has requested SFDC list Partner’s Consulting
Services Listing and/or Partner Application(s) on the AppExchange, Partner hereby grants SFDC a nonexclusive,
worldwide, fully paid-up, royalty-free license, for as long as Consulting Services Listings and/or Partner Application(s)
are listed on the AppExchange, to market Partner’s Consulting Services Listings and/or Partner Application(s) and,
to the extent Partner requests SFDC to list Partner Applications with “Test Drive,” “Get it Now” or similar functionality,
to permit others to access, install, and (in the case of downloadable software applications) download Partner
Applications through the AppExchange. Further, Partner grants SFDC a nonexclusive, worldwide, perpetual,
irrevocable, fully paid-up, royalty-free license to make, use, sell, copy, distribute and modify, and to grant sublicenses
to do all of the foregoing with respect to, any modifications, improvements or enhancements created by Partner to the
Platform. Partner represents and warrants that Partner owns or possesses all intellectual property and other rights
necessary to grant SFDC these licenses.
Without limiting any of SFDC’s other rights set forth herein, if Partner submits
for listing a Consulting Services Listing to the AppExchange, Partner agrees that SFDC may do the following with
respect to such listing:
(i) collect and publish reviews related to Partner’s Consulting Services; (ii) publish on the
AppExchange the number of completed consulting engagements Partner has submitted to the Partner Community
and the results of customer satisfaction surveys relating to the performance of such engagements with such results
to be generally compiled and conveyed in the form of an average numerical overall Customer rating of Partner’s
services, and (iii) publish the total number of SFDC certified consultants working on behalf of Partner’s company.
Such certification status shall relate to Partner’s representatives who have completed and successfully passed SFDC
certification training exams on the Services. Without limiting any of SFDC’s other rights set forth herein, for any
Partner Application listed on the AppExchange, Partner agrees SFDC may (i) collect and publish reviews related to
such Partner Applications, and (ii) collect and publish additional data and metrics about Partner Applications such as
the number of installations of such Partner Applications.
D.
Third Party Names in Listings.
Partners may not include the names of third parties or third parties'
apps or other third party products in the text of their own Partner Application or Consulting Services Listing on the
AppExchange without express authorization from the third party.
E.
Force.com Platform API Token.
To the extent that SFDC has provided Partner with a Force.com
Platform API token for a Partner Application, such Force.com Platform API token will be assigned to and may be used
only by users of that particular Partner Application to access the Force.com Platform API. Partner may not otherwise
disclose or expose such Force.com Platform API token to users of a Partner Application or third parties.
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3.
Platform API Previews
SFDC may provide Partner access to upcoming updates of the Platform API before making them generally available.
To the extent SFDC provides such access, to help ensure a successful end user experience, SFDC encourages
Partner to conduct regression tests of each Partner Application against any such upgraded Platform API during any
such early access period and to promptly notify SFDC of any issues Partner encounters.
4.
Reviews of AppExchange Applications by Partner
The AppExchange allows Partner to post reviews of AppExchange Applications. Any review by Partner of an
AppExchange Application shall be made in good faith after reasonable evaluation of the full AppExchange Application.
If Partner posts a review of its Partner Application, Partner shall self-identify and disclose the fact that it is reviewing
its own AppExchange Application. If Partner posts a review of a competitor's AppExchange Application, Partner shall
self-identity and disclose the fact that Partner publishes a competitive AppExchange Application.
5.
Service Levels.
A.
Availability of Partner Applications.
To the extent a Partner Application is not developed and
operated on the Platform, Partner shall use commercially reasonable efforts to make the Partner Application available
99% of the time, except as provided below. SFDC will calculate availability for each calendar quarter, as follows:
Where:
a.
total
means the total number of minutes for the quarter
b.
nonexcluded
means downtime that is not
excluded
c.
excluded
means the following:
i.
Any planned downtime of which Partner gives 24 hours or more notice to Partner’s
customers who are also Customers. Except in urgent circumstances (such as, for
example, a security threat or imminent or actual system failure), Partner will schedule all
planned downtime during the weekend hours from 9:00 p.m. Friday, Pacific Time,
through 3:00 a.m. Monday, Pacific Time.
ii.
Any unavailability caused by SFDC (e.g., by the Platform or Platform API)
iii.
Any unavailability caused by circumstances beyond Partner’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 Partner’s
employees).
6.
Providing Partner Applications to Users.
If SFDC permits publication of a Partner Application listing
,
Partner may offer Partner Applications via the
AppExchange at no charge or for a fee, under Partner’s own end user terms or under the default AppExchange No-
charge End User Terms set forth at the end of this
AppExchange Addendum
as
Section 9
. To offer Partner
Applications under Partner’s own end user terms, Partner must submit such end user terms to SFDC through the
online process described in the Partner Community. Partner may update such license terms from time to time using
the same process. If Partner does not submit Partner’s end user terms to SFDC through such online process, SFDC
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will make Partner Applications available under the default AppExchange no-charge end user terms. Partner
Application end user terms shall not make any representations about SFDC, the Services or other SFDC products,
nor purport to bind SFDC.
7.
Risk of Infringement of Intellectual Property Rights
Partner acknowledges the risk that Users who access Partner Applications through the AppExchange, including
through the pre-purchase “Test Drive” (or similarly functional) feature of the AppExchange, may develop applications
that infringe or misappropriate Partner’s intellectual property rights in Partner Applications. Nothing in this Agreement
restricts Partner from pursuing claims against such Users. However, in that event, Partner agrees that SFDC’s
provision of the AppExchange does not constitute contributory infringement or aiding or abetting of any such
infringement or misappropriation.
8.
Customer Data and Partner’s Customer Configuration/Usage Data
A.
Customer Data.
To the extent a Partner Application transmits Customer Data outside SFDC’s systems, Partner represents and
warrants that Partner has notified all users who have access to Customer Data or who may transmit such Customer
Data outside SFDC’s systems through such Partner Application, or will notify them prior to their use of such Partner
Application, that their Customer Data will be transmitted outside SFDC’s system and to that extent SFDC is not
responsible for the privacy, security or integrity of such data. Partner further represents and warrants that to the
extent a Partner Application stores, processes or transmits Customer Data, neither Partner nor such Partner
Application will, without appropriate prior Customer consent or except to the extent required by applicable law, (i)
modify the content of Customer Data in a manner that adversely affects the integrity of Customer Data, (ii) disclose
Customer Data to any third party, or (iii) use Customer Data for any purpose other than providing such Partner
Application’s functionality to the applicable Customer’s users of the such Partner Application. Partner shall also
maintain and handle all Customer Data in accordance with privacy and security measures reasonably adequate to
preserve its confidentiality and security and all applicable privacy laws and regulations. A modification or disclosure
of Customer Data does not violate either of the two preceding sentences to the extent (i) it results from an activity of
the applicable Customer using the applicable Partner Application and (ii) a reasonable Customer would expect that
modification or disclosure of its Customer Data to occur as a result of that activity.
B.
Partner’s Customer Configuration/Usage Data
.
“Partner’s Customer Configuration/Usage Data” means information stored in SFDC’s systems about Partner’s
customers’ configuration and usage of Partner Applications. To the extent Partner receives access to Partner’s
Customer Configuration/Usage Data in or from SFDC’s systems, Partner represents and warrants that Partner has
notified all of Partner’s users who are subjects of Partner’s Customer Configuration/Usage Data, or will notify them
prior to their use of Partner Applications, that Partner may receive such data from SFDC, and to that extent SFDC is
not responsible for the privacy, security or integrity of Partner’s Customer Configuration/Usage Data. Partner further
represents and warrants that to the extent Partner or Partner Applications store, process, collect or transmit Partner’s
Customer Configuration/Usage Data, neither Partner nor Partner Applications will, without appropriate prior user
consent or except to the extent required by applicable law, (i) modify the content of Partner’s Customer
Configuration/Usage Data in a manner that makes it inaccurate or misleading, (ii) disclose Partner’s Customer
Configuration/Usage Data to any third party other than Partner’s applicable customer, or (iii) use Partner’s Customer
Configuration/Usage Data except in connection with Partner’s relationship with Partner’s applicable
customer. Partner shall also maintain and handle all of Partner’s Customer Configuration/Usage Data in accordance
with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable
privacy laws and regulations. Notwithstanding the foregoing, this paragraph does not restrict Partner’s use or
disclosure of aggregated data containing Partner’s Customer Configuration/Usage Data, provided none of SFDC’s
customers is identified or identifiable through such aggregated data or through Partner’s use of such aggregated data.
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9.
Default AppExchange No-Charge End User Terms.
The following language shall constitute the default AppExchange no-charge End User Terms referenced under
Section 6
(Providing Partner Applications to Users) above:
THIS APPLICATION IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS
IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL
OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE
GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT
LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT
OF THE USE OF THIS APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE.
SUBJECT TO THE FOREGOING, THIS APPLICATION MAY BE FREELY REPRODUCED,
DISTRIBUTED, TRANSMITTED, USED, MODIFIED, BUILT UPON, OR OTHERWISE EXPLOITED
BY OR ON BEHALF OF SFDC OR ITS AFFILIATES, ANY CUSTOMER OR PARTNER OF SFDC
OR ITS AFFILIATES, OR ANY DEVELOPER OF APPLICATIONS THAT INTERFACE WITH THE
SFDC APPLICATION, FOR ANY PURPOSE, COMMERCIAL OR NON-COMMERCIAL, RELATED
TO USE OF THE SFDC APPLICATION, AND IN ANY WAY, INCLUDING BY METHODS THAT
HAVE NOT YET BEEN INVENTED OR CONCEIVED.
