The following is our Master Service Agreement. All Bullit Software Client's, or Prospects that are leveraging a "Free Trial", are required to accept these terms, along with those outlined in any Scope of Work, Quote, Estimate, and/or Order submitted by you. Please contact Bullit Software if you have questions or require additional clarification.
Version 1.2 (updated October 11 2016)
BULLIT SOFTWARE MASTER SERVICE AGREEMENT
(“MSA”)
Bullit Software Corporation
960 Cumberland Ave., Unit X
Burlington, ON, Canada
L7N 3J7
This Agreement governs your acquisition and use of our Services (defined in Section 1.14). This Agreement also governs "free trial" and "demo" versions of our Services. By accepting this Agreement, either by: a) selecting an acceptance checkbox, which indicates your acceptance, or b) executing the Agreement with electronic or written signature, or c) by approving/executing an Order Form that references this Agreement, You agree to this Agreement and all of its terms and conditions. If You are entering into this Agreement on behalf of a company or other legal entity, You represent, warrant and guarantee that You have the authority to bind such entity and its Affiliates, to these terms and conditions, in which case the terms "You" or "Your" shall refer to You and such Affiliates. If You do not have such authority, or if you do not agree with this Agreement, You must NOT accept this Agreement and may not use the Services. This Agreement is effective between You and Us as of the date that You accept this Agreement.
1. DEFINITIONS:
1.1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. "Agreement" means this Master Services Agreement together with any Order Forms entered into from time to time and excluding Quotation(s).
1.3. "Beta Services" means Our Services that are not generally available to customers.
1.4. "Billable Hours" means time spent on Services performed by Us for You on a time incurred basis as set out in an Order Form.
1.5. "Content" means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
1.6. "Documentation" means Our online user guides, documentation, and training materials, as updated from time to time.
1.7. “Intellectual Property Right” means any right that is or may be granted or recognized under any United States, Canadian, or foreign legislation regarding patents, copyrights, neighboring rights, moral rights, trade-marks, trade names, service marks, industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and personality rights and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing.
1.8. "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.9. "Managed Application" means a Bullit solution or application which operates on the SFDC platform which is ordered by You pursuant to an Order Form, such as the Sparx Point of Sale software solution (to the extent set out in an Order Form).
1.10. "Marketplace" means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, salesforce.com’s AppExchange located at http://www.salesforce.com/appexchange and any successor websites.
1.11. "Order Form" means a Bullit Software order form specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, Your Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Each Order Form shall form part of this Agreement.
1.12. "Purchased Services" means Services that You or Your Affiliate purchase via an Order Form, as distinguished from those provided pursuant to a free trial.
1.13. “Quotation” means an implementation proposal, Scope of Work document (“SOW”), Estimate, or other quotation or proposal issued by Us to You in respect of the Services.
1.14. "Services" means the products, services and deliverables that are ordered by You pursuant to an Order Form (or a free trial) and provided or made available by Us, including without limitation:
1.14.1. professional services including implementation, customization, configuration, consulting, administration and training services that we provide for SFDC related products, services, and solutions;
1.14.2. the design, development and construction of custom software applications and solutions for You, whether on the SFDC platform (force.com platform, salesforce1 platform) or otherwise;
1.14.3. the provisioning, configuration, and customization of our Managed Applications and Unmanaged Applications and software solutions whether built for/on the SFDC platform (force.com platform, salesforce1 platform) or otherwise (e.g. custom website solutions);
1.14.4. Support and Troubleshooting related services;
1.14.5. Marketing Plan management related services, including administration of Social Media, Online Advertising, Website, and other marketing related activities; and
1.14.6. any other Bullit products and services as may be set out in an Order Form.
1.15. "SFDC" means salesforce.com, inc. and its Affiliates.
1.16. "Support" means Bullit Standard Support which includes responses by Us to Managed Application related inquiries made by You via email with a forty eight (48) hour target response time, at no charge during the term of Your subscription to the Managed Application. “Premium Support” packages offer more timely responses and additional channels of communication and are provisioned, for a fee, as a Service via an Order Form.
1.17. “Third Party Software” means any software or services provided to you by a non-Bullit provider, including SFDC.
1.18. "Unmanaged Application" means tools and solutions built for, and deployed to, You as part of your SFDC products and ordered by You pursuant to an Order Form, such as Project Manager for Sales Cloud (to the extent set out in an Order Form). You must have an existing and active subscription with SFDC in order to use Unmanaged Applications.
1.19. "User" means an individual employee, system, or contractor, who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password.
1.20. "We," "Us", "Our", or "Bullit" means Bullit Software Corporation and or BKC Enterprises Ltd.
1.21. "You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
1.22. "Your Data" means electronic data, metadata records, database records, and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Third Party Software.
2. FREE TRIALS AND DEMOS:
2.1. If You register on our website, or via a third party website, for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA OR METADATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. IF YOU PURCHASE A SERVICE THAT IS DIFFERENT THAN THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY. BULLIT DOES NOT STORE YOUR DATA AND CANNOT RETRIEVE IT FOR YOU IN THE EVENT THAT A TRIAL EXPIRES.
2.2. Please review our Documentation and other training materials during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. OUR RESPONSIBILITIES:
3.1. Provision of Purchased Services. We will:
3.1.1. make the Services and applicable Content available to You pursuant to this Agreement and the applicable Order Form(s); and
3.1.2. provide Our Standard Support for Managed Applications to You at no additional charge, and/or upgraded “Premium” Support if purchased pursuant to an Order Form(s). Bullit does not provide support for Unmanaged Applications following installation, without an Order for “Premium” Support.
3.2. Protection of Your Data.
3.2.1. For Unmanaged Applications and SFDC product related services, Your agreement with SFDC outlines the security and confidentiality steps that SFDC maintains with respect to Your Data and for greater certainty, We are not responsible for and shall have no liability with respect to such data.
3.2.2. For Managed Applications, operating on the SFDC platform, we will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as may be described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing (including instructions by email).
3.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement and any related Order(s), except as otherwise specified herein.
3.4. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered "Services" under this Agreement, may not be supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. USE OF SERVICES AND CONTENT
4.1. Subscriptions. Unless otherwise provided in the applicable Order Form:
4.1.1. Services and Content are purchased as:
4.1.1.1. Subscriptions for Managed Applications and Support; and
4.1.1.2. Billable Hours based on hours worked, for all other Services and Unmanaged Applications (including customizations, training, configurations, consulting, administration, and the like),
4.1.1.3. Fixed-Fee project related work (where limits are outlined in the scope of the work are outlined in the Order Form(s),
4.1.2. Subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added and any added subscriptions will terminate on the same date as the underlying subscriptions.
4.1.3. We reserve the right to adjust our posted hourly rates for Billable Hours from time to time without notice.
4.2. Usage Limits. Services for Managed Applications and Unmanaged Applications are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified:
4.2.1. a quantity in an Order Form for a Managed Application or Unmanaged Applications refers to the number of Users, and the Service may not be accessed by more than that number of Users,
4.2.2. a User’s password may not be shared with any other individual, and
4.2.3. a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3. Your Responsibilities. You shall:
4.3.1. be responsible for Users’ compliance with this Agreement;
4.3.2. be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data;
4.3.3. use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Us promptly of any such unauthorized access or use;
4.3.4. use the Services only for Your internal business purposes in accordance with the Documentation and applicable laws and government regulations; and
4.3.5. comply with all terms and conditions applicable to any Third Party Software which You use in connection with the Services or Content or otherwise.
4.4. Usage Restrictions. You will not:
4.4.1. make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users;
4.4.2. sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering;
4.4.3. use a Service 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;
4.4.4. use a Service to store or transmit Malicious Code;
4.4.5. interfere with or disrupt the integrity or performance of any Service or third-party data contained therein;
4.4.6. attempt to gain unauthorized access to any Service or Content or its related systems or networks;
4.4.7. permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit;
4.4.8. copy a Service or any part, feature, function or user interface thereof;
4.4.9. copy Content except as permitted herein or in an Order Form or the Documentation;
4.4.10. access any Service or Content in order to build a competitive product or service; or
4.4.11. reverse engineer any Service (to the extent such restriction is permitted by law).
4.5. Removal of Content and Third Party Software. If We are required by a licensor to remove Content, or receive information that Content or Third Party Software provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content or Third Party Software from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Third Party Software until the potential violation is resolved.
4.6. Competitors. You may not access the Services if You are Our direct competitor, except with Our prior written consent. If you are uncertain of your potential conflict as a direct competitor, you must disclose so to your primary contact person at Bullit. If you fail to disclose this conflict, we reserve the right to, and you hereby agree to, terminate your Agreement and subscription(s) without refund. A "direct competitor" is defined as a person or entity that is either engaged in, or contemplating engagement in, an area of business similar to our Services.
4.7. Acknowledgement. You acknowledge and agree that this Agreement is between You and Bullit and that SFDC is not a party to this Agreement.
4.8. Changes. We have the right to make changes to the Services from time to time.
5. NON-BULLIT PROVIDERS:
5.1. Acquisition of Third Party Software. We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Third Party Software and implementation and other consulting services. Any acquisition by You of such Third Party Software, and any exchange of data between You and any Non-Bullit provider, is solely between You and the applicable Non-Bullit provider. We do not warrant or support Third Party Software or other Non-Bullit products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in our Order Form.
5.2. Third Party Software and Your Data. If You install or enable Third Party Software for use with a Service, You grant Us and SFDC permission to allow the provider of that Third Party Software to access Your Data as required for the interoperation of that Third Party Software with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by Third Party Software or any Non-Bullit provider.
5.3. Integration with Third Party Software. The Services may contain features designed to interoperate with Third Party Software. To use such features, You may be required to obtain access to Third Party Software from their providers, and may be required to grant Us access to Your account(s) on the Third Party Software. If the provider of any Third Party Software ceases to make their application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES:
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form:
6.1.1. Managed Application and Unmanaged Application fees are based on Services and Content purchased and not actual usage,
6.1.2. Other Services may be based on Billable Hours as set out in an Order Form and billed accordingly,
6.1.3. payment obligations are non-cancellable and fees paid are non-refundable,
6.1.4. quantities purchased cannot be decreased during the relevant subscription term as we have made commitments based on your contractual commitment to Us.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in an/the Order Form(s). If the Order Form(s) specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form(s). Unless otherwise stated in the Order Form(s), invoiced charges are DUE ON THE INVOICE DATE. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. Unless otherwise specified on the Order and Invoice, the default currency will be U.S. Dollars.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies:
6.3.1. those charges may accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; and/or
6.3.2. We may condition future subscription renewals and Order Forms on payment terms shorter than those specified on future Order forms and Invoices and reserve the right to eliminate itemized discounts on current Orders and future Invoices.
6.4. Suspension of Service and Acceleration. If any amount owing by You under this Agreement, or any other, agreement for Our Services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any applicable taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees. All payments made to Bullit shall be made without deduction or withholding of any kind, unless such deduction or withholding is required by applicable law. If any such deduction or withholding is required by applicable law, You shall: deduct or withhold any amount required; remit such amount to the relevant tax authorities as required by applicable law; provide Bullit with a certified copy of an official receipt from such tax authorities; and pay to Bullit an additional amount so that the net amount received by Bullit after such deduction or withholding (including in respect of such additional amounts) equals the amount that would have been received had no deduction or withholding been required.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6.8. Travel. We conduct all work and meetings remotely unless otherwise stated as "ON-SITE" in an Order Form. If You require ON-SITE meetings, this must be set out in the Order Form and will be charged/billed accordingly. We bill for all travel time at fifty percent (50%) of agreed Billable Hour rates (as per the Order Form). By way of example, if you require a Bullit consultant to travel one (1) hour each way to your business for a consultation meeting, you will be billed at half the normal rate for each hour of travel, in addition to the time required to conduct the actual consultation meeting. This is always the case unless expressly communicated otherwise in writing or in email. In all cases, We charge $90/day in "Per Diem", per person, for travel beyond the length of a full business day. Example: a consultant is needed ON-SITE at Your location for an entire work-day, the Per Diem fee would be charged. Such travel related Services needs to be quoted individually or provided for in an individual Order Form as special rates may apply. Airfare, hotel accommodations, car rentals, fuel, are all covered below in the section titled "Incidentals".
6.9. Incidentals. From time to time We may be required to make purchases on your behalf. These purchases may be related to the construction of work (eg. purchases of Content) or they may be related to fulfillment of Services. These incidental expenses will be charged back to You with an administration fee of ten percent (10%) levied on the final cost.
6.10. Estimates. Any pricing, delivery dates or functionality descriptions are set out in an Order Form are only estimates and are not binding on Us once the Estimate, Quote, or Scope of Work expires.
7. PROPRIETARY RIGHTS AND LICENSES:
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein. You acknowledge and agrees that Bullit and its licensors shall retain ownership of all Intellectual Property Rights created by Bullit in the performance of the Services and shall retain ownership of all software, deliverables, solutions, configurations, documentation, processes, trade secrets, ideas, concepts, methodologies, templates, techniques and know-how related to or produced in connection with the Services, whether conceived, developed or reduced to practice by Bullit, delivered to You, implemented on Your systems, and/or otherwise used in connection therewith, and whether developed specifically for You or any other customer prior to or following the date of this Agreement, including all enhancements, modifications, additions, and derivative works thereto, and all Intellectual Property Rights therein.
7.2. Unmanaged Applications. If You have Ordered any Unmanaged Applications, You represent, warrant and covenant that You have an existing and active subscription with SFDC in good standing.
7.3. License by Us to Use Content. We grant to You a limited-term, non-exclusive, non-sublicensable, non-transferable license, under Our applicable Intellectual Property Rights and licenses, to use the Services and Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation, solely for Your internal business purposes.
7.4. License by You to Host Your Data and Applications. You grant Us and Our Affiliates and SFDC a worldwide, limited term license to host, copy, transmit and display Your Data and any Third Party Software as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data.
7.5. License by You to Use Feedback. You grant to Us and Our Affiliates and SFDC a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services. You also grant us and Our Affiliates and SFDC the royalty-free license to use your feedback and reference You in Our marketing materials.
7.6. Audit. We have the right to audit your use of the Services by providing written notice.
8. CONFIDENTIALITY:
8.1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services, Content, and the engineering of those; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does 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.
8.2. 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) (i) not to 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, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliate’s 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 no less stringent 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 Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.4. Residual Knowledge. Nothing contained in this Agreement shall restrict Us from using any ideas, concepts, know-how, skills, methodologies, processes, techniques, and experience relating to the Services which we develop, either individually or jointly, under this Agreement, provided that, in doing so, We do not breach our non-disclosure obligations under this Agreement.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS:
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND IMPLIED CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS.
10. INDEMNIFICATION:
10.1. Indemnification. You will defend, indemnify and hold Us and our Affiliates and SFDC harmless from and against any and all claims, demands, suits, actions, causes of action and/or liability, of any kind whatsoever, for damages, losses, costs and/or expenses (including legal fees and disbursements) resulting from or in connection with Your Data, Your use of any Service or Content, any breach of this Agreement by You, any infringement or misappropriation by You of any third party’s Intellectual Property Rights or other rights or any violation of applicable law, any personal injury, death or property damage.
11. LIMITATION OF LIABILITY:
11.1. Limitation of Liability. IN NO EVENT SHALL BULLIT OR ITS LICENSORS (INCLUDING SFDC), AGENTS, RESELLERS OR ANY THIRD PARTY BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, WHETHER OR NOT ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM, OR IT IS FORESEEABLE REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE.
11.2. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNTS PAID BY YOU FOR THE SERVICES THAT GAVE RISE TO THE CLAIM IN THE ONE MONTH PERIOD PRIOR TO THE EVENT WHICH GAVE RISE TO THE CLAIM REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. TERM AND TERMINATION:
12.1. Term of Agreement. This Agreement commences on the Effective Date, which is the date this Contract is executed by You, and continues until the date that this Agreement is Terminated by either party.
12.2. Term of Purchased Subscriptions for Managed Applications. For Managed Applications, the term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods of one year, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant subscription term. The per unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 20% of the pricing for the applicable Purchased Service or Content in the immediately prior subscription term, unless the pricing in the prior term was designated in the relevant Order Form as promotional or one-time. Itemized Discounts on prior Terms or prior Order Forms may not be honoured in future Orders.
12.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. You agree that a missed deadline, inability to meet timeline, or anything similar that relates to a due date or deadline, is not considered a material breach of this Agreement by Bullit and that Bullit will not be liable for refund or financial penalties or damages due to alleged missed deadlines etc. In part, this is necessary as our clients are often responsible, to some extent, for timelines and deadlines being missed. Bullit may terminate this Agreement without cause by providing not less than 30 days written notice.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us for cause in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. We will provide You with Your Data in any Managed Application, in the event of Termination, within thirty (30) days of Your formal request, provided in writing by You. You have ten (10) days from the date of termination to formally request a copy of Your Data. With respect to any of Your Data in an Unmanaged Application, the return of Your Data will be handled by the applicable third party, e.g. SFDC. You must request a copy of Your Data within 30 days of termination which SFDC will provide in .csv format.
12.6. Surviving Provisions. The Sections titled "Fees and Payment for Purchased Services”, "Reservation of Rights," “License by You to use Feedback,” "Confidentiality," "Disclaimers," "Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Your Data Portability and Deletion of Your Data," "Governing Law and Jurisdiction," and "General Provisions" will survive any termination or expiration if this Agreement.
12.7. Spirit of the Relationship. We reserve the right to terminate the Relationship, and this Agreement, and will refund any pre-paid amount from you, if we believe within reason, that you are treating our staff or partners with disrespect to the point where it is disrupting our ability to manage the relationship, and/or attempting to make use of our Services in a fashion in which they are not intended to be used; including but not limited to use in an immoral or unethical way (as defined by Bullit - example for use in "black market" trade).
13. NOTICES, GOVERNING LAW, AND JURISDICTION:
13.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.2. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract. The parties irrevocably attorn to the exclusive jurisdiction of the courts located in Toronto, Ontario, Canada provided that Bullit shall be permitted to seek injunctive relief in a court outside of Ontario.
13.3. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14. GENERAL PROVISIONS:
14.1. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of Canada, the United States, and other jurisdictions. Each party represents that it is not named on any Canada or U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department or Executive Team.
14.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:
14.3.1. the applicable Order Form(s),
14.3.2. this Agreement, and
14.3.3. the Documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, we may assign this Agreement in its entirety (including all Order Forms), without the Your consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. Except as otherwise set out in this Agreement, including with respect to SFDC, there are no other third-party beneficiaries under this Agreement.
14.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.9. Currency. Unless otherwise stated in an Order Form, all amounts quoted and due will be in US Dollars.
14.10. Amending the Agreement. We may change this Agreement from time to time by providing you with written notice. If you continue to use the Services after being notified of a change to this Agreement after the date by which the change is stated to take effect, you will be treated as having agreed to the change. If you do not agree to the change to this Agreement, you must provide written notice to Us in which case we may, in our discretion, terminate your subscriptions to any Services in accordance with this Agreement or permit you to continue to use the balance of any subscriptions subject to the existing terms of this Agreement.
15. SFDC SERVICE AGREEMENT:
15.1. The additional terms and conditions set out in this Section (SFDC Service Agreement) shall apply to Managed Applications.
15.2. Definitions.
15.2.1. “AppExchange” means the online directory of on-demand applications that work with the Service, located at http://www.appexchange.com, https://appexchange.salesforce.com/, or at any successor websites.
15.2.2. “Platform” means the online, Web-based platform service provided by SFDC to Bullit in connection with Bullit’s provision of a Managed Application to You.
15.2.3. “SFDC Service” means the online, Web-based application and platform service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding AppExchange applications.
15.2.4. “Users” for purposes of this Section 15, means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service subject to the terms of this Agreement as a result of a subscription to the Managed Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by Salesforce.com or Bullit at Your request).
15.3. Use of Service.
15.3.1. Each User subscription to the Managed Application shall entitle one User to use the Service via the Managed Application, subject to the terms of this Agreement, together with any other terms required by Bullit. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Service). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service or to use it in connection with applications other than the Managed Application. If You wish to use the SFDC Service or any of its functionalities or services, to use another application other than the Managed Application, or to create or use additional custom objects beyond those which appear in the Managed Application in the form that it has been provided to You by Bullit, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Managed Application provides You with access to the SFDC Service generally or access to any SFDC Service functionality within it that is in excess to the functionality described in the Managed Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access and use such functionality, and You agree that Your use of such functionality, Your use of applications other than the Managed Application, or Your creation or use of additional custom objects in the Managed Application beyond that which appears in the Managed Application in the form that it has been provided to You by Bullit, would be a material breach of this Agreement.
15.3.2. Notwithstanding any access You may have to the Platform or the SFDC Service via the Managed Application, Bullit is the sole provider of the Managed Application and You are entering into a contractual relationship solely with Bullit. In the event that Bullit ceases operations or otherwise ceases or fails to provide the Managed Application, SFDC has no obligation to provide the Managed Application or to refund You any fees paid by You to Bullit.
15.3.3. You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Bullit or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, provincial, federal and foreign laws and regulations in using the Platform and the SFDC Service.
15.3.4. You shall use the Managed Application, the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
15.3.5. You shall not (i) modify, copy or create derivative works based on the Managed Application, Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Managed Application, Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Managed Application, Platform or the SFDC Service; or (iv) access the Managed Application, Platform or the SFDC Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Managed Application, Platform or the SFDC Service.
15.4. Third-Party Providers. Bullit and other third-party providers, some of which may be listed on pages within SFDC’s website and including providers of AppExchange applications, offer products and services related to the Platform, the SFDC Service, and/or the Managed Application, including implementation, customization and other consulting services related to customers’ use of the Managed Application, Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform, SFDC Service, and/or the Managed Application, such as by exchanging data with the Platform, the SFDC Service, and/or the Managed Application, or by offering additional functionality within the user interface of the Platform, the SFDC Service, and/or the Managed Application through use of the Platform and/or SFDC Service’s application programming interface. SFDC does not warrant any such third-party providers or any of their products or services, including but not limited to the Managed Application or any other product or service of Bullit, whether or not such products or services are designated by SFDC as “certified,” “validated” or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Managed Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Managed Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Bullit to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this Agreement.
15.5. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this Agreement.
15.6. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
15.7. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
15.8. Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this Agreement by You or any User, (b) the termination or expiration of Bullit’s agreement with SFDC pursuant to which Bullit is providing the Platform as part of the Managed Application to You, and/or (c) a breach by Bullit of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this Agreement.
15.9. Subscriptions Non-Cancelable. Subscriptions for the Platform and the SFDC Service are noncancelable during a subscription term.
15.10. Data Storage. The Platform and SFDC Service includes a certain cumulative amount of storage per User subscription for no additional charge. Contact Bullit for additional information. Additional storage may be available for purchase from Bullit.
15.11. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE MANAGED APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SALESFORCE.COM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO MANAGED APPLICATION AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
15.12. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.13. Further Contact. SFDC may contact You regarding new SFDC service features and offerings.
15.14. Google Programs and Services. Platform or SFDC Service features that interoperate with Google programs and services depend on the continuing availability of applicable Google application programming interfaces (“APIs”) and programs for use with the Platform and the SFDC Service. If Google Inc. ceases to make such APIs and/or programs available on reasonable terms to SFDC, SFDC may cease providing such features without entitling You or Bullit to any refund, credit, or other compensation.
15.15. Third Party Beneficiary. SFDC shall be a third party beneficiary to this Agreement solely as it relates to this Agreement.
15.16. An Admin User subscription is required per organization and should be included for all initial orders. Admin User subscription should be ordered for every 50 User subscriptions. If more than (1) Admin User subscription is required, additional Admin User subscriptions are available for purchase.
15.17. Admin User subscriptions may be used by You only to configure and administer the SFDC Service in support of such Your use of the Services. Ad Admin User subscription may not be used to access, distribute, or use any CRM functionality. CRM functionality is defined as access to CRM standard objects through standard tabs, related lists in customer tabs, through the SFDC web services API or through reports and dashboards, CRM standard objects include campaigns, leads, opportunities, cases, solutions, and forecasts.
15.18. Embedded Edition cannot be provisioned for initial orders without an Embedded Admin License.
15.19. SFDC may audit Your use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) business days of SFDCs notice of the audit results the difference between the price charged by Bullit to You for the applicable User subscription and SFDC’s then current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (Prohibited Use Penalty). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
15.20. Partner Admin User subscriptions may be used by Bullit only to configure and administer Your Managed Package Service in support of Your use of the Combined Solution. A Partner Admin User subscription may not be used to access, distribute, or use any CRM functionality. CRM functionality is defined as access to CRM standard objects through standard tabs, related lists in custom tabs, through the SFDC web services API or through reports and dashboards. CRM standard objects include campaigns, leads, opportunities, cases, solutions and forecasts.
15.21. SFDC may audit Your use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to Bullit, within thirty (30) business days of SFDCs notice of the audit results the difference between the price charged by SFDC to Bullit for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (Prohibited Use Penalty). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
15.22. In the event that Bullit ceases business and/or provision of the Managed Application, SFDC is under no obligation to provide the Managed Application, to refund to You any fees or to assume the relationship with You. SFDC has no liability to You for the Managed Application or for its continued availability.
15.23. You agree to comply with the SFDC User Guide “User Guide” accessible via http://www.salesforce.com, as updated from time to time.
15.24. Additional Restrictions. You shall not develop applications for internal use with the SFDC Services purchased from Bullit. You may develop applications for internal use with SFDC Services only when purchased directly from SFDC. You cannot extend the SFDC Services using additional custom objects, and use of the SFDC Services in connection with the Managed Application is limited to the objects and functionalities included in the Managed Application, and those functionalities of the Platform strictly necessary for the operation of the SFDC Services. Subscriptions to the Managed Application cannot be joined with an existing SFDC Org. Where such a combination is required, You must procure the necessary subscriptions directly from SFDC to support, operate and run the Managed Application. Should You wish to upgrade your SFDC Services subscriptions contained as part of the Managed Application to full SFDC Force.com Edition subscriptions, such upgrade subscriptions shall be made available directly by SFDC.
Bullit Software, Corp. 960 Cumberland Ave, Unit X.
Burlington, Ontario, Canada. L7N 3J6