Terms and Conditions for Trailhead Tracker by Salesforce Labs####These terms and conditions constitute a legally binding agreement (“Agreement”). Please read this Agreement carefully. By##(a) clicking to accept or agree, or otherwise indicating your acceptance of or agreement to, this Agreement (including by entering into any order that references this Agreement); or (b) downloading, installing, accessing, or using the Trail Tracker application (“Trail Tracker“) by Salesforce Labs and/or any update, upgrade and/or extension thereto provided by Salesforce Labs, or by salesforce.com or any of its affiliates (“SFDC”), including the Trail Tracker for Work.com extension (“Trail Tracker for Work.com”) by Salesforce Labs (collectively, the “Application”), then you:#### ● agree to the terms and conditions of this Agreement on behalf of the customer with which you are employed, affiliated or associated ("Customer");## ● represent that you have the authority to bind Customer to this Agreement; and## ● represent that you are an authorized administrative User under the master subscription agreement between Customer and SFDC (the "Master Subscription Agreement" or “MSA”).####If you do not have such authority, are not such an authorized User, or do not agree to this Agreement, you may not install or use the Application.####1. Separate Agreement##(a) This Agreement was last updated on June 1, 2020. SFDC may amend this Agreement by posting or otherwise making available an amended version of this Agreement at https://www.salesforce.com/company/legal/agreements/ or elsewhere on the www.salesforce.com website, on the salesforce.com AppExchange, or as otherwise disclosed or made available to Customer. Any such amendment shall be effective upon such posting, disclosure or being made available. Customer is responsible for reading and complying with the then-current latest version of this Agreement. Use of the Application following any amendment to this Agreement will constitute acceptance of such amendment and the amended Agreement.##(b) This Agreement is entered into and is effective by and between Customer and SFDC as of the date Customer first agrees to this Agreement or downloads, installs or uses the Application, whichever is earliest (“Effective Date”). This Agreement constitutes a separate agreement as between Customer and SFDC with respect to the Application and does not supersede or amend any existing agreement between the parties for the purchase or use of any other products or services of salesforce.com or any of its affiliates, including the MSA. Any prohibition under the MSA on entering into a click-through agreement shall not apply to this Agreement or to the Application. Capitalized terms used but not defined in this Agreement shall have the meanings given to them in the MSA, which are incorporated herein by reference. For purposes of the MSA, the Application is not a Service and shall be deemed to be a Non-SFDC Application.####2. License And Restrictions##(a) Subject to the terms and conditions of this Agreement, SFDC hereby grants to Customer, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferrable, revocable, limited license to use and permit the use of this Application by Users, in accordance with the installation guide, user guide, and any other user documentation for the Application as may be made available by Salesforce Labs or by SFDC or any of its affiliates (“Application Documentation”), solely for Customer’s internal use in connection with Customer’s authorized use of Services under the MSA (or as otherwise agreed in writing by SFDC) for the business purposes as described in the AppExchange listing (or other salesforce listing) for the Application, including to assign, track, and report on activity and badges earned by Users on the Trailhead website currently located at https://trailhead.salesforce.com/ (“Trailhead”).##(b) The Application is licensed, not sold, to Customer by SFDC under the terms of this Agreement. Subject to the limited rights expressly granted hereunder, as between the parties, SFDC and its affiliates, licensors, and providers retain and reserve all rights, title, and interest (including all intellectual property rights) in and to the Application. No rights are granted to Customer hereunder other than as expressly set forth herein. SFDC reserves the right at any time with or without notice to modify, suspend, discontinue and/or cease to make available the Application or any portion or component thereof.##(c) Except to the extent otherwise expressly stated in any Order Form or otherwise expressly agreed in writing by the parties, Customer shall not (i) use the Application other than in accordance with this Agreement and the Application Documentation; (ii) use the Application for the benefit of any entity or person other than Customer or its Affiliates; (iii) sell, resell, license, sublicense, market, transfer, rent, lease, lend, distribute, include the Application in a service bureau or outsourcing offering, or otherwise make available the Application to any entity or person other than its Affiliates and Users; (iv) modify, copy, or create derivative works based on the Application or any part, feature, function or user interface thereof, (v) except to the extent expressly permitted by applicable law, decompile, disassemble, or reverse engineer the Application or any part thereof; or (vi) access or use the Application to build a competitive product or service or a product or service using similar ideas, features, functions or graphics of the Application; or to copy any ideas, features, functions or graphics of the Application; or to benchmark or otherwise monitor the Application’s functionality or performance; or to determine whether the Application is within the scope of or infringes any patent. Customer shall comply with applicable laws, rules, and regulations relating to this Agreement and/or the use of the Application. Customer shall be responsible for the use of the Application by its Affiliates and Users and for their compliance with this Agreement. ##(d) The Application may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it and its Affiliates are not named on any U.S. government denied-party list. Customer shall not access or use, and shall not permit any of its Affiliates or any Users to access or use, the Application in a U.S. embargoed country or region (currently Crimea, Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any export law or regulation of the United States or any other country.####3. Third Party Components. The Application may include or link to certain third party code, data, or other components. Any applicable terms and/or notices required by providers of such components may be disclosed within the Application, in the Salesforce Trust and Compliance Documentation located at https://trust.salesforce.com/en/trust-and-compliancedocumentation/, on the www.salesforce.com website, or as otherwise disclosed or made available by SFDC.####4. No Support, Maintenance, or Service Level Agreement. SFDC and its affiliates shall not have any obligation to provide any update, upgrade, support, maintenance, or service level agreement for the Application. Any service level agreement in effect between Customer and SFDC or any of its affiliates shall not apply to the Application.####5. Use of Data##(a) Customer shall be responsible for the accuracy, quality and legality of any data submitted to and collected through the Application and the means by which Customer acquired such data. Customer shall not submit to or use the Application to collect any sensitive personal information comprising: government-issued identification numbers; financial information (such as credit or debit card numbers, any related security codes or passwords, and bank account numbers); information related to an individual’s physical or mental health; and information related to the provision or payment of health care. Prior to utilizing the Application to access any User’s Trailhead account data, (i) Customer shall notify and explain to such User the necessary steps to disconnect their Trailhead account from their User account with Customer and prevent Customer’s access to their Trailhead data if they do not consent; and (ii) Customer shall obtain such User’s consent for Customer to access and use such User’s Trailhead data.##(b) SFDC and its affiliates may track, collect, process, analyze, and store device, system, and other information related to use of the Application. This includes, but is not limited to, user ID, IP address, user metrics, and other data (“Usage Data”). SFDC and its affiliates may use Usage Data for analytics, product development, and marketing purposes; to create aggregated and anonymized reports which may include Usage Data from other customers; to provide and improve the Application; and to provide, support, maintain, and improve products and services of SFDC and its affiliates. The foregoing activities and use may include disclosing and sharing Usage Data with SFDC’s and/or its affiliates’ contractors in connection with the provision of services to SFDC and/or any of its affiliates, or as required by law. By using the Application, Customer and its Users consent to such activities, use and disclosure.####6. Feedback. If Customer or any of its Affiliates or any Users provide or otherwise make available to SFDC or any of its affiliates any suggestion, enhancement request, recommendation, correction, or other feedback, whether related to the Application, any product or service of SFDC or any of its affiliates, the operation of the foregoing, or otherwise (“Feedback”), Customer hereby grants to SFDC and its affiliates, to the maximum extent permitted under applicable law, a worldwide, perpetual, irrevocable, transferrable, sublicensable (through multiple tiers), royalty-free, fully paid-up license, without additional consideration to Customer or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify, and otherwise use, analyze, and exploit such Feedback, in any format or media now known or hereafter developed, for any purpose, including marketing or promotional purposes and/or to incorporate the Feedback into the Application and/or any product and/or service of SFDC or any of its affiliates. Customer hereby acknowledges and agrees that such Feedback is not confidential, and that the provision of Feedback is gratuitous, unsolicited and without restriction, and does not place SFDC or any of its affiliates under any fiduciary or other obligation.####7. Term and Termination. This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Agreement. Customer may terminate this Agreement at any time by removing the Application from its salesforce environment and ceasing all use of the Application. SFDC may terminate this Agreement at any time for convenience with or without cause immediately upon notice to Customer. This Agreement shall terminate immediately and automatically without notice (a) upon any termination or expiration of the MSA or (b) if Customer fails to comply with any term or condition of this Agreement or the MSA. Upon any termination of this Agreement, all of Customer’s rights hereunder shall terminate immediately, and Customer and its Affiliates and Users shall cease all use of the Application and Application Documentation, and shall delete or destroy all copies of the Application and Application Documentation in Customer’s or any of its Affiliates’ or any User’s possession. Termination of this Agreement shall not entitle Customer or any of its Affiliates to any refund, credit, or other compensation from SFDC or any of its affiliates under the MSA or any other agreement or from any third party. Sections 1, 2(b), 3, 5(b), 6, 7, 8, 9, 10, and 11 shall survive any termination of this Agreement.####8. Disclaimer. THE APPLICATION IS PROVIDED “AS IS”, AND USE OF THE APPLICATION IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SFDC AND ITS AFFILIATES AND THIRD PARTY PROVIDERS DO NOT MAKE ANY, AND HEREBY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. FOR AVOIDANCE OF DOUBT, NEITHER SFDC NOR ITS AFFILIATES OR THIRD PARTY PROVIDERS REPRESENT OR WARRANT THAT THE APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS, COMPLY WITH ANY SPECIFICATIONS, DOCUMENTATION, OR OTHER STANDARDS, BE ERROR-FREE, OR PROVIDE COMPLETE OR ACCURATE INFORMATION; NOR DO THEY MAKE ANY##REPRESENTATION OR WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE##APPLICATION.####9. Indemnification. Customer shall defend SFDC and its affiliates against any claim, demand, action, suit or proceeding made or brought against SFDC or any of its affiliates by a third party (a) alleging that any data submitted to the Application infringes or misappropriates any intellectual property right or proprietary right, or defames any person, or violates any right of publicity or privacy or applicable law, or (b) arising out of any use of the Application, or out of any non-compliance with this Agreement or the MSA, by Customer or any of its Affiliates or Users (each of the foregoing, a “Claim Against SFDC”); and shall indemnify and hold harmless SFDC and its affiliates from and against any and all damages, losses, liabilities, costs and expenses (including reasonable attorney fees, costs and expenses) arising out of, or any amounts paid by SFDC or any of its affiliates in settlement of, a Claim Against SFDC. SFDC shall (i) promptly give Customer written notice of the Claim Against SFDC, (ii) give Customer sole control of the defense and settlement of the Claim Against SFDC (except that Customer may not settle any Claim Against SFDC without SFDC’s express prior written consent), and (c) give Customer, at Customer’s expense, all reasonable assistance in the defense and settlement of the Claim Against SFDC. SFDC and its affiliates shall not have any indemnification obligations with respect to the Application.####10. Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SFDC, ITS AFFILIATES, AGENTS, LICENSORS, OR PROVIDERS BE LIABLE TO CUSTOMER, OR ANY OF ITS AFFILIATES OR USERS, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES; OR FOR ANY LOSS OF USE, DATA, PROFITS, REVENUES, SAVINGS, OR GOODWILL; OR FOR ANY BUSINESS INTERRUPTION; OR FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; OR ANY OTHER DAMAGES OR LIABLITY OF ANY KIND, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR OUT OF THE USE, MISUSE OR INABILITY TO USE, OR ANY RELIANCE ON, THE APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, OR EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR HAVE LEGISLATION THAT RESTRICTS THE LIMITATION OR EXCLUSION OF LIABILITY. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.####11. General. This Agreement, including any terms incorporated herein, is the entire agreement between Customer and SFDC relating to its subject matter, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, relating to that subject matter; provided that nothing in this Agreement shall limit Customer’s obligations or the rights of SFDC or any of its affiliates under the MSA or any other agreement between Customer and SFDC or any of its affiliates. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law and/or not enforceable, that provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect. Customer may not assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of SFDC. SFDC may freely assign, transfer, or sublicense any or all of its rights or obligations under this Agreement without restriction. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. SFDC’s waiver of any breach under this Agreement shall not be considered a waiver of any earlier or later breach. No failure or delay by SFDC in exercising any right under this Agreement shall constitute a waiver of that right. All waivers must be in writing. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each affiliate of SFDC is an express third-party beneficiary under this Agreement, and has the right (and shall be deemed to have accepted the right) to enforce this Agreement. SFDC and its affiliates shall not be responsible for any delay or failure in fulfilling any obligation or duty due to any cause beyond its or their control. The term “including” and its variations shall be interpreted as if followed by the phrase “without limitation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
