US: 212-863-9655
sales@navatargroup.com
EU: 44 20 3868 3389
eusales@navatargroup.com
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This Subscription Agreement (‘Agreement’) is entered into by and between Navatar Consulting Group, Inc, a Delaware Corporation having its principal place of business at 44 Wall Street, 12th Floor, New York, NY 10005, (‘RESELLER”) and Subscriber. It should be read in conjunction with each Order Form – OEM, which identifies the products or services that Subscriber is purchasing. This version of the Agreement applies to Subscribers who execute an Order Form or renew an existing Order Form on or after the effective date hereof. Subscribers who executed an Order Form prior to the effective date hereof will remain on the version of the Agreement in existence at the time they executed the Order Form until such time as they renew.
Reseller offers a version of its proprietary software application indicated in the applicable Order Form (“Reseller Application”), which is designed to be accessed and used in combination with one or more OEM Products provided by salesforce.com, inc. (“SFDC”) (“SFCD OEM Products”) and collectively called “Combined Solution”. The term “Combined Solution” shall be deemed to include all of the services that Subscriber is entitled to receive, as set forth in the applicable Order Form. Reseller will provide Subscriber and its “Affiliates” the Combined Solution in accordance with the terms and conditions set out in this Agreement. Subscriber will be responsible for compliance by its Affiliates with the terms and conditions of this Agreement. The term “Affiliates” means entities that control, are controlled by or are under common control with Subscriber.
Reseller has been granted by SFDC the right to market, demonstrate, resell and support certain of SFDC’s OEM Products in connection with and as part of the Combined Solution only.
1.1 Reseller grants to Subscriber a nonexclusive non-transferable worldwide right to use the Combined Solution solely for the internal business purpose subject to the terms of this Agreement. All rights not expressly granted are reserved by Reseller.
1.2 Each user subscription to the Combined Solution shall entitle one individual employee of Subscriber or its Affiliate (“User”) to use the Combined Solution, subject to the terms of this Reseller Subscription Agreement, together with any other terms required by Reseller. 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 Subscriber or otherwise changed job status or function and no longer require use of the Combined Solution).
1.3 Subscriber shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Combined Solution in any way; (ii) modify or make derivative works based upon the Combined Solution; (iii) create Internet “links” to the Combined Solution on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Combined Solution in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Combined Solution, or (c) copy any ideas, features, functions or graphics of the Combined Solution.
1.4 Subscriber may use the Combined Solution only for internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative 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 Combined Solution or the data contained therein; or (v) attempt to gain unauthorized access to the Combined Solution or its related systems or networks.
1.5 Subscriber may not access the Combined Solution if Subscriber is a competitor of Reseller or SFDC, except with Reseller’s prior written consent. In addition, Subscriber may not access the Combined Solution for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
1.6 As a Subscriber you (i) are responsible for all activities occurring under your User accounts; (ii) are responsible for the content of all Your Subscriber Data (defined in Section 3); (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Combined Solution, and shall notify Reseller and Salesforce.com promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Combined Solution.
1.7 Subscriber agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Reseller with respect to future functionality or features.
1.8 User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Combined Solution. Unless otherwise specified in the relevant Order Form, (i) the term of the additional User subscriptions shall be coterminous with the subscription term in effect at the time the additional Users are added; and (ii) pricing for the additional User subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional Users are added.
1.9 Subscriber shall not develop applications for use with the Combined Solution.
1.10 This Agreement provides for the license of the Combined Solution and for no services other than the services set forth in an Order Form. The providing of any other services or any data, in whatever form, by Reseller shall be the subject of a separate agreement for that purpose which will be distinct from this Agreement, including but not limited to the combination of the Combined Solution with any other product offered by SFDC.
1.11 Either party may include the name and logo of the other party in lists of Subscribers or vendors in accordance with the other party’s standard published guidelines for use of such party’s logo.
Third party providers, some of which may be listed on pages within Resellers website and including providers of AppExchange applications, offer products and services related to the CRM service provided by SFDC (“SFDC CRM Service(s)”) and/or the Combined Solution, including implementation, customization and other consulting services related to Subscribers’ use of the Combined Solution and/or the SFDC CRM Service, and applications (both offline and online) that interoperate with the Combined Solution or SFDC CRM Service, such as by exchanging data with the Combined Solution or the SFDC CRM Service, or by offering additional functionality within the user interface of the Combined Solution or the SFDC CRM Service, through use of the Combined Solution and/or SFDC CRM Service’s application programming interface. Reseller does not offer any warranties relating to any such third-party providers or any of their products or services (“Third Party Products”), including but not limited to, the SFDC CRM Services or any other product or service of SFDC, whether or not such Third Party Products are designated by Reseller as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Subscriber and a third-party provider, including but not limited to the SFDC’S CRM Service, and any purchase by Subscriber of any Third Party Products offered by such third-party provider, including but not limited to the SFDC’S CRM Service, is solely between Subscriber and such third-party provider. In addition, from time to time, certain Third Party Products may be offered by Reseller to Subscriber for an additional fee pursuant to terms specified by the third party provider and agreed to by Subscriber in connection with a separate purchase by Subscriber of such additional functionality. Subscriber’s use of any such additional functionality shall be governed by such separate terms.
Reseller does not own any data, information or material that Subscriber submits to the Combined Solution in the course of using the Combined Solution (“Subscriber Data”). Subscriber, not Reseller, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data, and Reseller shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data.
Subject to the limited rights expressly granted hereunder, as between Reseller and Subscriber, Reseller reserves all rights, title and interest in and to the Combined Solution, including all related intellectual property rights in the Combined Solution and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or on your behalf relating to the Combined Solution. No rights are granted to Subscriber hereunder other than as expressly set forth in this Subscription Agreement. The Combined Solution is deemed Reseller confidential information, and Subscriber will not use it or disclose it to any third party except as expressly permitted in this Agreement. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Combined Solution, the technology or the intellectual property rights owned by SFDC. The name, logo, and the product names associated with the Combined Solution are trademarks of Reseller, SFDC or third parties, and no right or license is granted to use them. Subscriber shall not (i) modify, copy or create derivative works based on the Combined Solution; (ii) reverse engineer the Combined Solution; or (iii) access the Combined Solution in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Combined Solution, (c) hire a third party to make any changes to the Combined Solution or (d) copy any ideas, features, functions or graphics of the Combined Solution.
Subscriber shall pay all then current fees or charges to its account in accordance with the billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total User licenses requested times the User license fee currently in effect. Payments must be made in advance of receipt of the Combined Solution unless otherwise mutually agreed upon in an Order Form. All payment obligations are non-cancelable and all amounts paid are non-refundable. Subscriber is responsible for paying for all User licenses ordered for the entire license term, as indicated in the Order Form, (“License Term”) whether or not such User licenses are actively used. Subscriber must provide Reseller with valid credit card or approved purchase order information as a condition to signing up for the Combined Solution. An authorized License Administrator may add licenses by executing an additional written Order Form. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either initial term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added at any time during a billing month will be charged in full for that billing month. Reseller reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party. Unless otherwise stated, Reseller’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Reseller’s net income. If Reseller has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides Reseller with a valid tax exemption certificate authorized by the appropriate taxing authority.
Any payment not received from Subscriber by the due date may accrue (except with respect to charges then under reasonable and good faith dispute for which written notice has been received by Reseller per Section 6), at Reseller’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Reseller charges and collects in advance for use of the Combined Solution. Reseller will automatically renew and bill your credit card or issue an invoice to you each year on the subsequent anniversary of the term or as otherwise mutually agreed. The renewal charge will be equal to the then-current number of total User licenses times the license fee in effect at the time of renewal or as otherwise provided in the Order Form. In addition, Reseller has the right to increase charges during the term on at least 15 days prior written notice. Fees for other services will be charged on an as-quoted basis. Reseller’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
Subscriber agrees to provide Reseller with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Reseller reserves the right to terminate your access to the Combined Solution in addition to any other legal remedies.
If Subscriber believes that a bill is incorrect, it must notify us, in writing, within 30 days of the invoice date of the invoice containing the amount in question in order to be eligible for a possible adjustment or credit.
In addition to any other rights granted to Reseller herein, Reseller reserves the right to suspend or terminate this Agreement and your access to the Combined Solution if your account becomes more than 30 days delinquent (falls into arrears) except with respect to charges then subject to a good faith dispute for which written notice has been received per Section 6. You will continue to be charged for User licenses during any period of suspension. If you or Reseller initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees Section above. You agree that Reseller may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Reseller reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Combined Solution. All costs of collection, including attorney’s fees, shall be borne by Subscriber.
The Combined Solution includes a certain cumulative amount of storage per User subscription for no additional charge as indicated by Reseller. Additional storage may be available for purchase from Reseller.
THE PROVISION BY RESELLER OF THE COMBINED SOLUTION OR OTHER SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. RESELLER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
This Agreement commences on the Effective Date. The Initial Term will be as indicated in an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Reseller’s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the date of the invoice for the following term. Subscriber use of the Combined Solution may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this Agreement by Subscriber that, if curable, is not cured within 15 days of written notice of the breach, or (b) the termination of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Combined Solution as part of the Reseller Application to Subscriber.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Reseller represents and warrants that it has the right to provide the Combined Solution to Subscriber in accordance with the terms of this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Combined Solution and that your billing information is correct.
RESELLER MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE COMBINED SOLUTION, THE RESELLER APPLICATION, THE SFDC OEM PRODUCTS, THIRD PARTY PRODUCTS OR THE SFDC CRM SERVICES OR ANY OTHER SERVICES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, RESELLER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE COMBINED SOLUTION, SFDC SERVICE OR ANY OTHER SERVICES. RESELLER DOES NOT REPRESENT OR WARRANT THAT (A) THE COMBINED SOLUTION, SFDC SERVICE OR ANY OTHER SERVICES WILL BE AVAILABLE, SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER RESELLER SERVICE OR ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SYSTEM OR DATA, (B) THE SFDC SERVICE OR THE COMBINED SOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA STORED USING THE COMBINED SOLUTION OR SFDC SERVICE WILL BE ACCURATE, RELIABLE, OR SECURE, (D) ERRORS OR DEFECTS IN THE COMBINED SOLUTION OR SFDC SERVICE OR ANY OTHER SERVICE WILL BE CORRECTED, OR (E) THE COMBINED SOLUTION OR SFDC SERVICE OR THE SYSTEMS USED BY SFDC TO MAKE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMBINED SOLUTION IS PROVIDED STRICTLY ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, RESELLER DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO COMBINED SOLUTION, SFDC SERVICE AND ANY OTHER SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
IN NO EVENT SHALL RESELLER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT FOR RESELLER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, IN NO EVENT SHALL RESELLER OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE COMBINED SOLUTION, THE RESELLER APPLICATION, SFDC OEM PRODUCTS, THIRD PARTY PRODUCTS OR THE SFDC CRM SERVICES OR ANY OTHER SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SAME, OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF YOU HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Subscriber shall indemnify and hold Reseller, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) a third party claim alleging that use of the Subscriber Data infringes the rights of, or has caused harm to, a third party; or (ii) a third party claim arising from the breach by you or your Users of this Agreement. Reseller agrees to (a) promptly give written notice of the claim to you; (b) give you sole control of the defense and settlement of the claim (provided that you may not settle any claim without Reseller’s prior written consent unless you unconditionally release Reseller of all liability and such settlement does not harm Reseller’s business); and (c) provide to you all available information and assistance as you have reasonably requested, at your expense.
Reseller shall indemnify and hold Subscriber and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) in connection with a claim alleging that the Reseller Application (either alone or as part of the Combined Solution) infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party. You agree to (a) promptly give written notice of the claim to Reseller; (b) give Reseller sole control of the defense and settlement of the claim (provided that Reseller may not settle any claim without your prior written consent unless it unconditionally releases you of all liability); and (c) provide to Reseller all available information and assistance as Reseller has reasonably requested, at Reseller’s expenses. Reseller shall have no indemnification obligation and you shall indemnify Reseller pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Combined Solution with any of Subscriber’s products, service, hardware or business process(s) or for claims arising from your use of the Combined Solution in a manner not permitted by this Agreement or by an agreement for a Third Party Product.
This Agreement may not be assigned by you without the prior written approval of Reseller but may be assigned without your consent by Reseller to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this Section shall be void. Any actual or proposed change in control of you that results or would result in a competitor of Reseller directly or indirectly owning or controlling 50% or more of you shall entitle Reseller to terminate this Agreement immediately upon written notice.
16.1 Relationship . No provision of this Agreement shall be deemed to constitute a partnership, joint venture or agency between the Parties. The parties are independent contractors.
16.2 No Waiver . The failure of Reseller to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Reseller in writing.
16.3 Governing Law: The validity, construction and performance of this Agreement shall be governed and interpreted in accordance with the laws of New York, without regard to its conflicts of laws rules, and the state and federal courts of New York located in New York County, New York shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.
16.4 Notices: Any notice required under this Agreement shall be in writing and may be delivered by email, fax, courier or certified mail, return receipt requested to the address indicated in the Order Form or such new address sent to the other party in accordance with this Section 16.4.
16.5 Severability: Any provision of this Agreement, which is prohibited, unenforceable or is declared or found to be illegal, unenforceable or void shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement
16.6 Entire Agreement: No text or information set forth on any purchase order prepared by a Subscriber shall add to or vary the terms and conditions of this Agreement. This Agreement, together with all applicable Order Forms, is the entire agreement between the parties concerning the subject matter hereof.
16.7 Third Parties: Except as expressly provided herein, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person other than the Parties hereto and their successors or permitted assigns, any rights, benefits or remedies of any kind whatsoever under or by reason of this Agreement.
16.8 Survival: The rights and obligations of the Parties under this Agreement, which by their nature survive the termination of this Agreement or which are specified to survive termination of this Agreement shall not be extinguished by termination of this Agreement. Without limiting the foregoing, the following provisions shall survive termination: 4, 12, 13, 14 and 16.
16.9 Compelled Disclosure: If either Subscriber or Reseller 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.
16.10 Costs: Each of the Parties hereto shall bear its own legal, accountancy and other costs, charges and expenses connected with the negotiation, preparation and implementation of this Agreement and any other agreement incidental to or referred to in this Agreement. However, in the event of any controversy concerning or related to this Agreement or the performance of this Agreement, the prevailing party shall be entitled to recover its reasonable expenses (including reasonable attorneys’ fees) incurred in resolving such controversy, in addition to any other relief that may be available.
16.11 Force Majeure: For purposes of this Agreement, a “Force Majeure” shall mean a major cause beyond a party’s reasonable control (and not involving any fault or negligence of the other party) including, without limitation, acts of God, acts of war, revolution, riots, civil commotion, acts of a public enemy, embargo, acts of government in its sovereign capacity, strikes, lockouts, boycotts, or other natural disasters. In this regard, changes in business circumstances or business objectives shall not constitute a “Force Majeure.” To the extent that a party is unable to fulfill, in whole or part, its obligations hereunder, where such inability arises by reason of an event of Force Majeure (“Force Majeure Event”), such party shall be temporarily excused from fulfilling such obligations under this Agreement (but only to the extent that its inability to fulfill such obligations is caused by such Force Majeure Event) until the abatement of such Force Majeure Event. Upon the occurrence of a Force Majeure Event, the affected Party shall give prompt notice to the other party and use best efforts to minimize loss created by such Force Majeure Event. Force Majeure Events, however, shall not excuse payment obligations hereunder.