Vlocity Online Subscription Agreement

Last updated on: July 22, 2015

 

THIS VLOCITY SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN VLOCITY INC., WITH BUSINESS OFFICES LOCATED AT 50 FREMONT STREET, SUITE 2250, SAN FRANCISCO, CA 94105, (“VLOCITY”), AND YOU (THE “SUBSCRIBER”).  THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT (“EFFECTIVE DATE”).  EACH OF VLOCITY AND SUBSCRIBER IS A “PARTY” AND TOGETHER THEY ARE THE “PARTIES.”

THIS AGREEMENT GOVERNS ANY FREE TRIAL PERIODS FOR VLOCITY SERVICES AND ANY USAGE THEREAFTER BY SUBSCRIBER AND END-USERS, WHETHER PAID OR NOT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, DURING ANY TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.

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 AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

WHEREAS, Vlocity has developed and maintains a software-as-a-service (“SaaS”) internet-based solution that allows End-Users to manage certain customer relationships and perform certain business processes. These Services are provided by Vlocity under the trade names identified in an applicable Order and as described on Vlocity’s Site.

WHEREAS, Vlocity agrees to provide such Services to Subscriber pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:

1.    DEFINITIONS

1.1.    In addition to the capitalized terms defined throughout this Agreement, the following terms when used herein shall have the respective meanings assigned to them below:

1.2.     “Affiliate”, with respect to either Party, shall mean any entity, including and without limitation, any individual, corporation, company, partnership, limited liability company, or group, that directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Party. Any references to Subscriber herein shall also include reference to Subscriber Affiliates.

1.3.    “Content” shall mean the content that is made available by Vlocity through the Services.

1.4.    “End-User” shall mean any individual employee of Subscriber, Subscriber’s Affiliate, or Subscriber’s wholly owned subsidiary who is authorized by Subscriber to use the Services.

1.5.    “User Data” shall mean any electronic data and information used by Subscriber or End-Users with the Services and may include Subscriber’s data, data relating to Subscriber’s customers, End-User data, as well as any third party data. User Data shall be stored, maintained, and controlled by Subscriber at all times.

1.6.    “Order” shall mean either: (i) any specific sales quotations or orders as agreed to electronically by way of a click-to-agree or in writing and signed by the Parties from time to time; or (ii) as set forth in the applicable Vlocity payment summary screen. Each Order is hereby incorporated by reference into this Agreement. If there are any inconsistencies or conflicts between this Agreement and an Order, the inconsistent or conflicting terms of the Order shall govern.

1.7.    “Professional Services” shall mean any live support, consulting, training, or development services or other services as specifically described and priced in the applicable Order.

1.8.    “Server” shall mean the server(s), whether virtual, physical, or otherwise, on which Vlocity has the Software installed for Subscriber’s use.

1.9.    “Service Description” shall mean any description of Vlocity’s Services that are advertised on Vlocity’s Site or in the applicable Order. Vlocity’s applicable operator and user manuals or guides, designs, technical reference manuals, flow diagrams, file descriptions, Service descriptions found on the Vlocity site, and any other written materials pertaining to the use of the Software. 

1.10.  “Services” shall mean the Software and the Site, which are provided to Subscriber by Vlocity pursuant to the terms of this Agreement.

1.11.  “SFDC” shall mean Salesforce.com.

1.12.  “Site” shall mean the Internet website(s), located at www.vlocity.com.

1.13.  “Software” shall mean the primary software application(s) which are identified in the applicable Order, all modifications, enhancements, updates and new releases thereto, along with all associated databases, web server software, connectivity software, security software, and all other applications (whether or not identified in the applicable Order) which are used to support or provide the functionality of the primary software application(s).

1.14.   “Third Party Property” shall mean any third-party products, including but not limited to, software or materials, to be incorporated into or provided as part of the Services.

2.    SERVICES

2.1.    Orders.  Vlocity shall perform the Services in accordance with the applicable Order.

2.2.    Changes.  No change to the Services shall be implemented unless it has been approved in writing signed by an authorized representative of each Party (each, a “Change Order Amendment”).  Upon Subscriber’s and Vlocity’s execution of the Change Order Amendment, the Change Order Amendment shall be incorporated into and become part of the applicable Order.

3.    LICENSE

3.1.    License Grant.  Subject to the terms and conditions of this Agreement, Vlocity hereby grants Subscriber a nonexclusive, nontransferable, worldwide license (“License”) to access and use the Services.  All rights not expressly granted to Subscriber under the License are reserved by Vlocity.  The License granted to Subscriber pursuant to this Agreement will permit use of the Services as set forth in the Order.  Any Subscriber Affiliate may also be added by Subscriber as a registered End-User under this Agreement.  SUBSCRIBER SHALL BE RESPONSIBLE FOR THE FAILURE OF ANY SUBSCRIBER AFFILIATE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.

3.2.    Usage Restrictions.  The Content is for use only by Subscriber and its assigned End-Users.  Except as permitted by this Agreement, the Content may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or used to create any derivative works.  Subscribers may not use any network monitoring or discovery software to determine the Site’s or Service’s architecture, or extract information about usage or individual identities of users.  Subscriber may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Services or its Content, without first receiving Vlocity’s prior written consent.  Unless prior written authorization is obtained in advance from Vlocity, Subscriber may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any non-End-User third party the Services or the Content in any way; (ii) modify or make derivative works based upon the Services or the Content; (iii) "frame" or "mirror" any Content on any other server or wireless or Internet-based device.  Subscriber may use the Site and Services only for its internal business purposes and shall not: (i) send spam or otherwise excessive, duplicative, or unsolicited messages; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (v) attempt to gain unauthorized access to the Services or its related systems or networks; (vi) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of third-party privacy rights; or (vii) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit.

3.3.    Export Compliance.  The Services that Vlocity makes available, and any derivatives thereof, may be subject to export laws of the United States and other jurisdictions. Each Party represents that it is not named on any US Department of Commerce Denied Person’s List or Entity List. The Vlocity Services, or any derivatives thereof, may not be exported to or used by: (i) any US embargoed countries; or (ii) anyone on the US Treasury Department’s list of Specially Designated Nationals or the US Department of Commerce Denied Person’s List or Entity List. Subscriber agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Subscriber’s customers or End-Users are located.

3.4.    Third Party Services.  In the event that Subscriber installs or enables a third party application or service for use in conjunction with the Services, Subscriber grants Vlocity permission to allow the provider of that third party application or service to access User Data as required for interoperation. Vlocity is not responsible for any modification, loss, usage, disclosure, transmission, or deletion of that User Data resulting from access by a third party application or service.

4.    PROFESSIONAL SERVICES

4.1.    Professional Services.  As mutually agreed by the Parties, and in conjunction with the Services, Vlocity may perform certain Professional Services, which may include certain implementation, training, or other expert services.  Such Professional Services shall be provided for a separate fee, which will be specified in an applicable Order in accordance with the terms and conditions of this Agreement.  Such Professional Services shall be provided in a manner that is consistent with applicable industry standards, and if such standards are not met (with a reasonable opportunity to cure following written notice from Subscriber), Subscriber’s sole remedy shall be the re-performance of such Professional Services.

5.    PROPRIETARY RIGHTS

5.1.    Vlocity Properties. The Services, Professional Services, and its Content (“Vlocity IP”) are owned or licensed by Vlocity and protected by U.S. and international copyright, trademark, service mark, trade secret, patent and/or other proprietary rights and laws.  Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to Subscriber any license or right under copyright or other intellectual property right law.  No part of the Vlocity IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement.  Subscriber shall not take any action that shall interfere with or diminish Vlocity’s right in any of the Vlocity IP. In the case of any custom reports, interfaces, or integration tables for User Data that are created by Vlocity for Subscriber, if any, Subscriber shall own the User Data within each report, interface, or integration table, but Vlocity shall retain ownership of any templates that it creates, even if created on a custom basis for Subscriber.

5.2.    User Data.  As between Vlocity and Subscriber, Subscriber shall, at all times, own or obtain the appropriate permissions to use the User Data and shall be responsible for the accuracy and adequacy of any and all User Data as well as establishing any required legal terms and conditions prior to the use of any User Data.  Subscriber shall obtain all prior consents, internally or from relevant third parties, prior to uploading and using any User Data to the Services.  Subscriber grants to Vlocity a non-exclusive, royalty-free, worldwide license during the Term to access and use the User Data for the purpose of delivering the Services, which may include the aggregation of such data in an anonymized manner for benchmarking and other purposes (while at all time protecting the confidentiality of such data in accordance with Section 7).  Subscriber acknowledges that any use of User Data may involve transmissions over various networks and changes to conform and adapt to the technical requirements of those networks. Subscriber authorizes the aforementioned transmissions and changes.

5.3.    No Storage of User Data by Vlocity. Subscriber acknowledges that all User Data that is used in conjunction with the Services is stored and persists on the SFDC platform or as otherwise designated by Subscriber.  Subscriber, and not Vlocity, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use its own User Data, and Vlocity shall not be responsible or liable for the failure to store, delete, correct, or destroy or for any damage or loss of any User Data.

5.4.    License to Use Feedback.  Subscriber grants to Vlocity an irrevocable, royalty-free, worldwide license of unlimited duration to use, modify, and incorporate into the Services any feedback, suggestions, requests, or recommendations relating to the Services or Professional Services.

5.5.    Usage Data.  Subscriber grants to Vlocity an irrevocable, royalty-free, worldwide license of unlimited duration to use, modify, and incorporate into its own support offering, product development, operational plans, and sales or marketing materials, any anonymous usage data acquired from Subscriber’s account and use of the Services.

5.6.    References to Subscriber. Upon the Effective Date of this Agreement, Vlocity may make references to Subscriber and Subscriber’s URL and may use Subscriber’s designated trademark and logo for the limited purpose of publishing it on Vlocity’s current list of subscribers located on the Vlocity Site. Vlocity may also respond to any inquiry regarding whether Subscriber is a licensee and user of the Services.

6.    FEES AND PAYMENTS

6.1.    Fees.  Subscriber shall pay Vlocity for the Services provided by Vlocity hereunder as specified in the applicable Order.

6.2.    Payment Methods.  At a time mutually agreeable to the Parties, Vlocity agrees to submit invoices and/or accept payment by the following methods:

- Electronic Data Interchange ("EDI")

- Electronic Funds Transfer

- Company Check

Prior to EDI transmission, Vlocity shall execute an EDI Trading Partner Agreement with Subscriber under terms and conditions acceptable to both Parties.  Each Party shall bear its own costs, and provide its own appropriate equipment and software necessary to accomplish EDI capability.

6.3.    Payment Terms.  All pricing and payments are and shall be in U.S. dollars.  Subscriber shall pay each invoice as set forth in the Order or within 30 days of receipt, unless it has a bona fide dispute with respect to payment of such invoice or portion thereof.  If there is a bona fide dispute regarding any invoice rendered or amount paid, the disputing Party shall notify the other by written Notice thereof, and the Parties shall use their best efforts to resolve such dispute expeditiously.  If an aggrieved Party notifies the other in writing of a disputed invoice or payment, and there is a good faith basis for such dispute, the time for paying the portion of the invoice in dispute shall be extended by a period of time equal to the time between receipt of such notice and the resolution of such dispute.  Undisputed portions of any invoice shall be paid as stated above.

6.4.    Taxes.  Subscriber shall be financially responsible for all sales or services taxes that are assessed on the provision of the Services to Subscriber, excluding any withholding or export taxes or taxes based upon Vlocity’s income.  To the extent Vlocity is required to collect such taxes under applicable law, Vlocity, to the extent legally or otherwise required, shall separately state the amount of tax due on its invoices to Subscriber. Subscriber and Vlocity shall cooperate to segregate the fees into: (i) those for taxable Services and (ii) those for nontaxable Services. The Parties shall reasonably cooperate with each other to more accurately determine each Party’s tax liability and to minimize such liability, to the extent legally permissible. In addition, Vlocity shall provide and make available to Subscriber any information regarding the computation of any such taxes as reasonably requested by Subscriber. Vlocity shall not pay any taxes based on the Services that Subscriber and Vlocity disagree on as to whether a tax is due without affording Subscriber a reasonable amount of time after being called upon by the taxing authority to pay such tax to dispute the payment of such tax, at Subscriber’s expense, in the appropriate legal forum.

7.    CONFIDENTIALITY

7.1.    Confidentiality.  Each Party agrees to maintain the confidentiality of the other Party’s Confidential Information as defined herein.  “Confidential Information” means all information concerning a Party’s business not generally known to the public, whether or not marked as confidential. By way of illustration only, Confidential Information may include this Agreement, trade secrets, know-how, inventions, contractual disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, whether or not such information is marked as confidential.  Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and / or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party.  In maintaining the confidentiality of the other Party’s Confidential Information, each Party shall use at least the same standard that Party uses for its own confidential information of similar type, and shall take necessary precautions not to disclose such information to any person except its officers, employees or subcontractors, who have a need to know in order to comply with the obligations of this Agreement.  Each Party’s officers, employees, and subcontractors shall be bound by the terms of this Section or a similar written agreement with terms no less protective of either Party’s Confidential Information than this Agreement.  Each Party acknowledges that any actual or threatened violation of this Section may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing Party shall be entitled to seek injunctive relief in addition to all other remedies available at law and/or in equity.  Nothing in this Section shall prohibit Vlocity from disseminating aggregated information that contains no identifiable Subscriber Confidential Information.

7.2.    Destruction and Return of Confidential Information. Upon request of the disclosing Party or upon termination of this Agreement, all materials containing Confidential Information will be destroyed or returned to the disclosing Party and the receiving Party will retain no copies or reproductions of the Confidential Information unless required by law, except the receiving Party may retain one record copy, subject to the reasonable instructions of the disclosing Party with respect to such copy.

7.3.    Cooperation.  In the event of any unauthorized use or disclosure or loss of any Confidential Information of the disclosing Party, the receiving Party shall promptly, at its own expense:  (i) notify the disclosing Party in writing; (ii) take such actions as may be necessary or reasonably requested by the disclosing Party to minimize the violation or the damage resulting therefrom; and (iii) cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.

7.4.    Limitation.  Notwithstanding the provisions of this Section, Vlocity may disclose Subscriber’s Confidential Information, which includes personally identifying information and End-user activity: (i) in accordance with a judicial or other governmental subpoena, warrant or order; provided that Vlocity shall comply with any applicable protective order or equivalent and, unless prohibited by law, Vlocity will employ commercially reasonable efforts to provide Subscriber with prior written notice, so that Subscriber has an opportunity to intervene at its own expense and to protect the confidentiality of its information; (ii) to law enforcement officials and regulators if it reasonably suspects unlawful activity; and (iii) to other Parties that are identified by Subscriber for that purpose.

7.5.    No Intellectual Property.  THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use disclosing Party’s Confidential Information for the express, limited purposes described above.

8.    REPRESENTATIONS AND WARRANTIES

8.1.    Power and Authorization.  Each Party hereby represents, warrants, and covenants to the other Party that (i) it is duly organized, validly existing and in good standing under the laws of the state of its domicile and is in good standing in each other jurisdiction in which such qualification is required by law; (ii) it has power and authority to transact the business it transacts and proposes to transact and to execute and deliver this Agreement and to perform the obligations under this Agreement, and (iii) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a Party or otherwise bound.

8.2.    Compliance with Law.  Each Party hereby represents, warrants, and covenants to the other Party that in performing its obligations and exercising its rights under this Agreement, it will comply (and shall require all the its personnel providing Services hereunder to comply) with all applicable laws.

8.3.    By Subscriber.  Subscriber hereby represents, warrants, and covenants to Vlocity that: (i) it has obtained all the appropriate consents required by law from its customers to ensure that Subscriber and Vlocity have the right to use the User Data in association with the Services and as described in Vlocity’s Privacy Policy, located at https://vlocity.com/privacy/; and (ii) it will not use the Service to collect, upload, retrieve, transmit, send, and/or store any sensitive personally identifiable information, including, without limitation, government issued ID numbers, individual medical or health records, financial information, birth dates, social security codes, credit card information, passwords, or “sensitive personal data” under the Directive 95/46/EC. Vlocity reserves the right to delete any User Data that is in violation of any terms in this Agreement or of any applicable laws.

8.4.    Disclaimer of Additional Warranties.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM, WAIVE, RELEASE AND RENOUNCE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VLOCITY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT FUTURE PRODUCT FEATURES OR FUNCTIONALITY.

9.    INDEMNITIES

9.1.    General Indemnities.  Each Party shall defend, indemnify and hold the other Party and its Affiliates and their respective officers, directors, employees, agents, contractors, successors, and assigns harmless from and against any and all damages, losses, fines, penalties, costs, and other amounts (including reasonable attorney’s fees and expenses) (collectively, “Losses”) arising from or in connection with any actual or threatened claims, demands, investigations, and causes of actions by third parties (each a “Claim”) to the extent such Claim is based on or arises from or relates to (i) any breach or default of any provision of this Agreement; or (ii) negligent or intentional acts or omissions caused by the other Party or its Affiliates and their respective officers, directors, employees, agents, contractors, successors and assigns.  Further, Subscriber shall defend, indemnify and hold Vlocity harmless from and against any Losses arising from or in connection with any Claims to the extent such Claim is based on or arises from or relates to: Subscriber’s misappropriation or misuse of any User Data or any of Subscriber’s obligations to third parties relating to such User Data.

9.2.    Indemnification Procedure.  Each indemnified Party shall provide the indemnifying Party with prompt written Notice of any Claim for which the indemnified Party is seeking or may seek indemnification hereunder (provided that the failure of the indemnified Party to promptly notify the indemnifying Party hereunder shall not relieve the indemnifying Party of any liability with respect to the Claim, except to the extent the indemnifying Party demonstrates that the defense of the Claim is prejudiced by such failure).  The indemnified Party shall provide reasonable cooperation (at the indemnifying Party’s expense) and retain full authority to defend or settle the Claim.  The indemnifying Party shall keep the indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any such Claim.  The indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing.  The indemnifying Party shall not have the right to settle any Claim if such settlement arises from or is part of any criminal action or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the indemnified Party without the prior written consent of such indemnified Party.

10.  LIMITATION OF LIABILITY

10.1.  THE LIABILITY OF VLOCITY AND SUBSCRIBER TO EACH OTHER FOR ANY AND ALL CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AVERAGE MONTHLY SUBSCRIPTION FEES CONVERTED TO AN ANNUALIZED BASIS. SUBSCRIBER ACKNOWLEDGES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 

10.1 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF VLOCITY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. VLOCITY HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PURSUANT TO THIS AGREEMENT.

10.2.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THIS SITE, SERVICES, OR THE CONTENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3.  NOTWITHSTANDING THE FOREGOING, SECTION 10.1 AND SECTION 10.2 WILL NOT APPLY TO: (I) CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR CRIMINAL ACTS OR OMISSIONS; (II) BREACH OF CONFIDENTIALITY OR INTELLECTUAL PROPERTY; (III) ANY THIRD PARTY CLAIMS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT; OR (IV) THE BREACH BY EITHER PARTY OF THEIR REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.

11.  COOPERATION

11.1.  Cooperation.  Each Party shall inform the other Party of (i) any complaints made to such Party, (ii) any actions, proceedings, claims, demands or complaints brought by a third party relating to the Services or products provided by Vlocity to Subscriber under this Agreement, or to (iii) any regulatory body relating to this Agreement or anything acquired hereunder; and cooperate with the other Party with respect to the resolution of such complaints.  For the avoidance of doubt, the Party against whom the complaint was made shall control the response to any regulatory body, if any, with respect to any such complaint.

12.  TERM AND TERMINATION 

12.1.  Term. The initial term of this Agreement shall be as set forth in the applicable Order (“Initial Term”) and shall thereafter be renewed by the Parties for recurring one (1) year periods (“Subsequent Term”) unless either Party provides the other Party with at least thirty (30) days prior written notice of termination or intention not to renew prior to the commencement of the next annual period. The Initial Term and Subsequent Term may collectively be referred to as the “Term”.

12.2.  Termination for Breach.  Either Party may terminate the applicable Order hereunder upon written notice to the other Party if such other Party commits a material breach of this Agreement and does not cure such breach within 30 days following its receipt of Notice thereof from the terminating Party. No refunds shall be issued to Subscriber in the event that Subscriber commits a material breach of this Agreement. “Material breaches” include: (i) failure by Vlocity to deliver the Services or Professional Services as agreed under this Agreement; (ii) any breach of Section 5 (Proprietary Information); (iii) any failure by Subscriber to pay fees when due; (iii) or any breaches by either Party of Sections 3 (License), 7 (Confidentiality), 8 (Representations and Warranties), 9 (Indemnities), or 11 (Cooperation).

12.3.  Suspension of Services.  Any unauthorized access, use of passwords or Services, or other abuse or impermissible activity on Vlocity’s Site or in connection with Vlocity’s Services may result in immediate suspension or termination of End-User accounts with no refund and without limitation of any other available legal remedies.  Vlocity may suspend Subscriber’s access to any Services until all overdue payments are paid in full. Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for the remainder of the term for any delinquent accounts.  Subscriber acknowledges and agrees that Vlocity has no obligation to retain User Data and that such User Data, if any, may be irretrievably deleted upon termination of this Agreement. With respect to any Services provided by Vlocity as an original equipment manufacturer (OEM) partner on a third-party platform, Subscriber acknowledges that (i) Subscriber’s access to the Services may be suspended due to non-payment by Subscriber to such third-party platform through which Vlocity Services are accessed or breach of Subscriber’s agreement with such third-party platform, and (ii) in the event such Subscriber’s relationship with the third-party platform through which Vlocity Services are accessed is terminated as a result of non-payment or other material breach of such Subscriber’s agreement with the third-party platform, such Subscriber’s License to the portion of the Services provided in conjunction with the third-party platform would also be terminated.

12.4.  Remedies Not Limiting.  The remedies provided in this Section 12 are in no way limiting of one another or of any other rights and remedies granted to either Party under this Agreement.  Vlocity may choose to, but is not required to, place Subscriber’s account on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.

13.  MISCELLANEOUS

13.1.  Notices. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either (i) hand-delivered to the addressee; or (ii) deposited in the mail (registered or certified) or delivered to a private express company. Notices must be addressed as follows: (A) if to Vlocity, at the mailing address or email set forth in the “Contact Us” section of the Site; or (B) if to Subscriber, at the mailing address or email set forth in the Order. Email notice shall be effective upon confirmation of receipt by the receiving Party.  Either Party may change its notice address by providing the other Party with notice of the change.

13.2.  Assignment; Binding Effect.  Neither Party shall assign or transfer this Agreement nor delegate any of its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld.  However, either Party, upon written notice to the other Party, may assign this Agreement to the surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets provided that Subscriber shall have the right to immediately terminate this Agreement in the event that Vlocity assigns this Agreement to any competitor of Subscriber.  Any assignment, transfer or delegation of rights or obligations hereunder in contravention of this Section shall be null and void.  This Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the Parties to this Agreement and their respective successors and permitted assigns.

13.3.  Dispute Resolution; Equitable Relief.  The Parties agree that, in the event of a dispute or alleged breach, they shall first work together in good faith to resolve the matter internally through negotiations and, if necessary, by escalating it to higher levels of management.  The foregoing shall not apply to, and shall not prevent a Party from seeking immediate relief in the event of, disputes involving the confidentiality or data protection provisions of this Agreement or infringement of intellectual property rights (in which case either Party shall be free to seek available remedies in a court of competent jurisdiction in accordance with the Governing Law Section of this Agreement).

13.4.  Entire Agreement; Amendment.  This Agreement sets forth the entire understanding between the Parties with respect to the subject matter hereof.  This Agreement supersedes all prior or contemporaneous representations, discussion, negotiations, letters, proposals agreements and understandings between the Parties hereto with respect to the subject matter hereof, whether written or oral.  This Agreement may be amended, modified or supplemented only in a writing duly executed by an authorized representative of each of Subscriber and Vlocity.

13.5.  Governing Law.  This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions. For any disputes that are not resolved by way of good faith negotiations and settlement, the Parties hereby consent to the exclusive venue and jurisdiction for actions concerning or relating to this Agreement in the federal or state courts of San Francisco, County of San Francisco, California.

13.6.  Headings.  The Section headings in this Agreement are for reference and convenience only and do not explain, modify, interpret, or expand the provisions of this Agreement.

13.7.  Independent Contractors.  In making and performing under this Agreement, the Parties are acting and shall act as independent contractors and not that of master and servant or partnership.  Neither Party is, nor will be deemed to be, an agent, legal representative, joint venture, or partner of the other Party for any purpose.  Neither Party shall have any authority to act for or to bind the other Party in any respect, nor shall either Party hold itself out as having such authority.  Each Party agrees to assume complete responsibility for its own employees with regard to federal or state employer’s liability, worker’s compensation, social security, unemployment insurance, and Occupational Safety and Health Administration requirements, and other laws.

13.8.  Severability.  If any of the provisions of this Agreement are declared to be invalid or unenforceable by a court of competent jurisdiction, such provisions shall be ineffective to the extent of such invalidity or unenforceability while the other provisions hereof shall remain in full force and effect.

13.9.  Waiver.  No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent is in writing and signed on behalf of the Party against whom it is asserted.  Any consent by any Party to, or waiver of, a breach of the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach of this Agreement by such Party.

13.10.  Survival.  The provisions of this Agreement, which by their nature survive expiration or termination of this Agreement, shall survive, including, but not limited to the following Sections: 5 (Proprietary Rights), 7 (Confidentiality), 8 (Representations and Warranties), 9 (Indemnities), and 10 (Limitation of Liability).

13.11.  Controlling Document. Notwithstanding any inconsistent or additional terms and conditions which may be contained in a purchase order, invoice, voucher or other similar document issued by either Party, such document shall be for issuing Party’s internal purposes only and the terms and conditions of this Agreement shall prevail. Therefore, even if such document is acknowledged or accepted by the receiving Party and regardless of any statement to the contrary which may be contained therein, the inconsistent or additional terms and conditions of such purchase order, invoice, voucher or other similar document shall have no force or effect on this Agreement.

13.12.  Interpretation; Construction. Unless the context of this Agreement clearly requires otherwise, (i) references to the plural include the singular, the singular the plural, the part the whole, (ii) references to any gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive meaning frequently identified with the phrase “but not limited to,” and (v) references to “hereunder” or “herein” relate to this Agreement.