Etherios LLC’s Terms of Agreement##Etherios LLC, a Delaware entity (referred to here as “Etherios”), provides and maintains a Salesforce application to view and extract Salesforce organization metadata (“Service”) for you or your organization (”user” or “you”). Etherios requires you to register for an account (”account”) in order to use the Service. The Service is provided to you under the terms and conditions set forth in the Terms of Agreement (“Agreement”) and any rules or policies otherwise set forth on the Terms of Agreement web page by Etherios. The Agreement set forth below and any rules or policies otherwise set forth on the Terms of Agreement web page comprise the entire agreement between you and Etherios and supersedes any and all prior agreements or understandings between the parties.##By accepting the conditions of this Agreement, you represent that you are and will be in compliance with all terms, conditions, and policies of Salesforce.com (”Third Party Terms”). You must remain compliant with Third Party Terms during the course of this Agreement as the same may be modified, altered, and/or amended from time to time.##Etherios may amend this Agreement at any time by posting the amended terms and conditions on the Terms of Agreement web page. Unless otherwise indicated, all amended terms shall automatically be effective fourteen (14) days after they are initially posted on the Etherios website. Your continued use of our Service constitutes an affirmative acceptance of this Agreement, including without limitation any modifications or changes thereto. You are responsible for reviewing and becoming familiar with any changes. This agreement was last revised on March 24, 2009. Etherios, in its sole discretion, may add, delete, or modify some or all of the features of the Service at any time. We shall not be liable to you or any third party should we exercise our right to modify or discontinue the Service.####License Grant & Restrictions##Etherios hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Etherios and its licensors.####You may not access the Service if you are a direct competitor of Etherios, except with Etherios’ prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.####You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; (ii) modify or make derivative works based upon the Service; or (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.####Eligibility & Registration##By registering for an account you acknowledge that you are authorized to do so on behalf of your organization. Use of the Service is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the foregoing, the Service is not available to minors. Further, the Service is not available to parties whose use of the Service has been suspended or terminated.##To use the Service, you must create an account yourself or the corporation, partnership or other legal entity that will be using the Service. By accepting this Agreement, you represent that (a) you are eighteen (18) or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Service. You shall provide current, complete and accurate registration information, and then update the information as required to keep the registration information current, complete and accurate.##As a subscription service, Etherios may require you to provide account identification and/or authentication information for multiple payment alternatives including, but not limited to, credit card, debit card, automatic deduction from your bank account, purchase order, and bill payment services such as PayPal. By providing such payment alternatives to Etherios, you are explicitly authorizing Etherios to charge one or more of these payment sources to pay for your use of the Service. You must keep your registration information current, complete and accurate, especially your email address and your payment information. ####Passwords and Security##You shall at all times maintain the confidentiality of your usernames and passwords. If you are a corporation, partnership or other legal entity, you may allow employees to use usernames and passwords, provided that you are responsible for all activity and all charges by such employees. You will be liable for any unauthorized use of the Service until you notify Etherios in writing of the security breach. You agree to immediately notify Etherios of any unauthorized use of your account or any other breach of security known to you.####Fees and Payment Terms##You agree to pay all charges for services, including any applicable taxes, at the rates in effect when the charges are incurred. Etherios may change the fees and charges then in effect, or add new fees or charges, by giving users notice in advance. No refunds of fees will be given for services rendered. You will pay for the Service in advance of its use. Usage of the service is based upon the passage of time. Any fees for the Service yet to be rendered (for future months) can be refunded if your account is terminated. If Service is terminated mid-month, fees for the month of termination will be paid in full to Etherios and will not be prorated. If payment is not made, Etherios reserves the right to suspend or terminate user’s account and access to the Service. Etherios reserves the right to terminate user’s account at any time. All fees are payable in U.S. Dollars unless stated otherwise and will not be treated as paid until actually received by Etherios in same-day and freely available funds.####User Conduct##You agree to comply with all applicable laws, statutes, ordinances and regulations relating to, applying to, or governing use of Service. You may not use the Service to engage in fraud or other illegal activity, or to infringe the intellectual property rights of others. You may not engage in any conduct violating Third Party Terms. You agree to indemnify and hold Etherios harmless from and against any and all claims, damages, losses or obligations suffered or incurred by Etherios arising from your failure to so comply.##You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure or limits our ability to provide the Service. You agree that you will not collect copy, reproduce, alter, modify, create derivative works, or publicly display any content or information from the Service without the prior expressed written permission of Etherios or the appropriate third party. You agree that you will not use any robot, spider, or other automatic device or routine to access or interface with the Service.####Intellectual Property##As between you and Etherios and its licensors, you acknowledge and agree that Etherios and its licensors own all right, title, and interest in (i) the Service, (ii) the technology available through the Service, and (iii) all content (including, without limitation, text, photographs, video, and graphics) except the actual data retrieved from your Salesforce.com database for page creation and any copyright, trade secret, patent, trademark, and other intellectual property rights therein. Any use of the Etherios content other than to create and operate the Service is not licensed and strictly prohibited. You agree that you will not upload, transmit, reproduce, distribute, or in any way exploit any Etherios content obtained through the Service without first obtaining the express permission to do so from Etherios. This Agreement does not constitute a license to use Etherios’ trade names, service marks, or any other trade insignia. Any use of any of Etherios’ trade names, service marks, or any other trade insignia shall be subject to Etherios’ prior written consent.##Subject to the terms and conditions of this Agreement, Etherios grants a limited license to you to make personal use of the Service only for their intended purposes. This license expressly excludes any resale of the Service, making any derivative of the Service, or any data extraction or data mining whatsoever, except with the express consent of the owner of such materials.####Service Levels##Etherios does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond Etherios’ control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Etherios or Third Parties are located or co-located. Complete accuracy in all aspects of statistics at all times is not guaranteed.##Some Etherios releases or features may be identified as “Beta” in the future. Beta features or releases are provided “as is” and should be used at your option and risk. You acknowledge that Beta services are provided for evaluation purposes and may contain significant errors and/or defects for which Etherios is not obligated to provide any direct support. You shall not disclose to any third party any information from, existence of or access to Beta releases or features.####Termination##You may terminate this Agreement at any time. During this process, you may be asked to contact Etherios via telephone during normal business hours to complete the termination and to ensure that the termination process is completed quickly and effectively. Etherios, in its sole discretion, may terminate this Agreement or suspend or terminate your access to the Service immediately without notice for any reason including, without limitation, for your infringement of the intellectual property rights of others. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity and the general provisions.####Privacy##Etherios is committed to protecting your privacy and we will only use and disclose Your Materials in accordance with our Privacy Policy, which is viewable on our website, www.etherios.com.####No Warranties/Liabilities##ETHERIOS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. ARROWPOINTE SHALL NOT BE LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING ATTORNEY FEES) INCURRED BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE SERVICE. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA OR OTHER INJURY, FAILURE OR INTERRUPTION OF SERVICE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT. IN FURTHERANCE OF, BUT WITHOUT LIMITING THE FOREGOING: (A) ETHERIOS ACKNOWLEDGES THAT THE SERVICE IS PROVIDED ON AN “AS IS” BASIS AND THAT YOU MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE USEFULNESS, ACCURACY, COMPLETENESS, FEASIBILITY, RELIABILITY OR EFFECTIVENESS OF THE SERVICE OR THAT THE OPERATION OF THE SERVICE WILL MEET THE OBJECTIVES OF YOU OR ANY THIRD PARTY, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.####Indemnity##You hereby agree to, at your own expense, indemnify, defend and hold ETHERIOS and our subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any and all claims, actions, losses, damages, liability, costs and expenses (including but not limited to reasonable attorneys’ fees and expert fees) arising out of or relating to (a) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content submitted by you to the Service; (b) any fraud, manipulation, or other breach of this Agreement by you; (c) any third-party claim, action or allegation brought against Etherios arising out of or relating to a dispute with you over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; (d) your violation of any law or the rights of a third party; (e) your violation of any Third Party Terms; or (f) your use, or Etherios’ provision, of the Service or use of your account by any third party. Etherios reserves the right to participate in its defense and hire counsel of its choice, but shall have no obligation to do so. You will not settle any action or claims on Etherios’ behalf without the prior written consent of Etherios.####Limitation of Liability##IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY 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. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE 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 THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.####General##This Agreement is not assignable, transferable or sub-licensable by you without Etherios’ prior written consent, and any such conveyance shall be null and void. Etherios may assign this Agreement in whole or in part. This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware without regard to conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the Delaware State and U.S. federal courts having within their jurisdiction the location of Etherios’ state of incorporation. You expressly consent to (a) the jurisdiction of such courts; and (b) service of process being affected upon you by registered mail sent to the address you provide Etherios in connection with your Service, as may be changed by written notice actually received by Etherios. Unless prohibited by the law of your jurisdiction, you waive any requirement that service of process or of any documents be made upon you pursuant to the provisions of the Hague Convention. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. You agree and acknowledge that this is an entire agreement between you and Etherios and you are not entering into this agreement in reliance on any statements or representations other than those set forth herein. Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement shall control.####Questions regarding this Statement should be directed to Etherios at products@etherios.com.
