eightCloud, Inc.####Application Services Agreement Terms & Conditions####eightCloud, Inc. ("eightCloud") provides a Salesforce software application or component (the "Application") on the Salesforce platform. The following Terms and Conditions, the order form or AppExchange.com enrollment page by which Customer subscribes for the Application (an "Order Form"), and any additional documents specifically incorporated thereby set forth the entire agreement regarding the use of the Application between each customer of the Application (each "Customer") and eightCloud (collectively, this "Agreement"). By executing an Order Form manually or electronically, submitting payment information to subscribe for the Application, clicking the "I Accept" button displayed as part of the "Get It Now" AppExchange installation process, or installing software directly from eightCloud.com, Customer agrees to the provisions of this Agreement.####1 Provision of Application.##1.1 Application. eightCloud will provide the Application to Customer as described on the eightCloud site at www.eightCloud.com and the Salesforce AppExchange at www.AppExchange.com (or at any successor websites). Except as otherwise set forth on an Order Form and below, for Customers signing up on the AppExchange for monthly payments the initial term of this Agreement is one month, and the term will automatically renew for additional one month terms unless terminated as provided in Section 9. For Customers signing up on the AppExchange for yearly payments the initial term of this Agreement is one year, and the term will automatically renew for additional one year terms unless terminated as provided in Section 9.##1.2 Handling of Customer Data. Customer recognizes and agrees that: (a) the Application operates within the Salesforce platform to receive from the web site(s); (b) the Application does not collect or store any data, information (including without limitation personally identifiable information), content, templates, forms, or material provided, made available, or submitted to the Application or retrieved by the Application from Customer's Salesforce.com account ("Customer Data"); and (c) security of Customer Data is the responsibility (if any) of Salesforce.com and not of eightCloud. ##1.3 Availability of Salesforce. Customer recognizes and agrees that the Application runs entirely within the Salesforce platform, and that eightCloud will be unable to provide the Application and will have no liability in the event Salesforce is unavailable for any reason. eightCloud is not responsible or liable for any nonperformance of Application arising from planned or unplanned downtime of Salesforce or customer web sites.##2 Payments.##2.1 Payment. All fees due under this Agreement are payable in advance and in U.S. dollars only. Payment terms for the Application will be set forth on the Salesforce AppExchange. Monthly plans are payable monthly on the same billing date each month, and yearly plans are payable once per year. All fees are non-cancelable and non-refundable, except as expressly provided in this Agreement. eightCloud may modify its prices by providing at least 30 days prior notice before the next renewal term of the Agreement. eightCloud reserves the right to suspend or terminate this Agreement and/or Customer access to the Application if Customer fails to pay any fee within 30 days of its due date. Overdue amounts are subject to a late charge of 1.5% per month or the maximum permitted by law, whichever is less. Customer will reimburse eightCloud for all reasonable costs incurred (including attorneys' fees) in collecting past due amounts. Customer shall be responsible for any taxes, duties or withholdings based on Customer's order, excluding taxes based on eightCloud's income.##3 Customer Data, Materials, Software, and IP.##3.1 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Customer is solely responsible for Customer Data, including without limitation the accuracy, quality, integrity, legality, reliability, security and appropriateness of Customer Data, and any intellectual property ownership or right to use Customer Data. eightCloud is not responsible for the deletion, alteration, or loss of, or failure to store any Customer Data. Customer hereby agrees to take all measures necessary to protect and encrypt sensitive Customer Data in accordance with local, state and federal laws. Customer recognizes and agrees that: (a) eightCloud does not own or have access to Customer Data in the ordinary course of its business; (b) Salesforce provides a tool that permits Customer to allow eightCloud to log in to the Application as Customer in order to provide support services; and (c) if Customer provides such access to eightCloud, eightCloud will be able to view Customer Data. eightCloud will use all such Customer Data, if at all, only in order to provide support. Customer Data is Customer's Confidential Information and eightCloud is bound by the obligations in Section 6 in regard to all such information. Except as set forth in the preceding sentence, eightCloud will have no responsibility or liability for any exposure, disclosure, or loss of Customer Data, or for any loss arising out of or related to Customer Data.##3.2 IP in General. eightCloud retains all right, title, and interest in and to the Application and all software used to provide the Application, including all updates, modifications and customizations, and all text, photographs, illustrations, designs, logos, trademarks and other content reproduced through the Application, whether provided by eightCloud, Salesforce, or any other third party, used to provide or presented through the Application ("Materials"). Customer recognizes and agrees that: (a) the Materials are the property of eightCloud or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (b) Customer does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer's use of the Application. This Agreement does not grant Customer any intellectual property rights in or to the Application or any of its components.##3.3 Acceptable Use. Customer agrees not to and will not encourage or assist any third party to:##(a) use the Application to harm others or the Application, for example, by using the Application to harm, threaten, or harass another person, organization, or eightCloud and/or to build a similar service or website.##(b) damage, disable, overburden, or impair the Application (or any network connected to the Application); resell or redistribute the Application or any part of it unless otherwise approved by eightCloud in writing ; use any unauthorized means to modify, reroute, or gain access to the Application or attempt to carry out these activities; or use any automated process or Application (such as a bot, a spider, or periodic caching of information stored by eightCloud) to access or use the Application;##(c) modify, alter, tamper with, repair or otherwise create derivative works of any software provided as part of the Application; ##(d) reverse engineer, disassemble or decompile the software used to provide or access the Application or attempt to discover or recreate the source code used to provide or access the Application;##(e) sell, lend, rent, resell, lease, sublicense, frame, mirror or otherwise transfer any of the rights granted to you with respect to the Application to any third party;##(f) remove, obscure or alter any proprietary rights notice pertaining to the Application;##(g) access or use the Application in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;##(h) use the Application to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through eightCloud; (iv) store or transmit inappropriate Customer Data, such as Customer Data: (1) containing unlawful, defamatory, threatening, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store or transmit any Customer Data that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;##(i) interfere with or disrupt servers or networks used to access the Application, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of the Application;##(j) access or attempt to access eightCloud's other accounts, computer systems or networks;##(k) share passwords or other access information or devices or otherwise authorize any third party to access or use the Application.##eightCloud reserves the right, in its sole discretion, to determine whether and what action to take in response to violations of this Section 3.3. Any action or inaction in a particular instance will not dictate or limit eightCloud's response to a future complaint. ##4 Performance of Duties and Obligations.##Customer hereby grants to eightCloud all licenses and rights in and to Customer Data necessary for eightCloud to provide support of the Application to Customer or as required by law. Customer is responsible for providing all Customer Data required for the proper operation of the Application. ##5 Representations, Warranties, & Remedies.##5.1 Right to Do Business. Each party warrants that (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; and (b) that the person executing this Agreement on behalf of such party has been authorized to execute this Agreement and bind such party to its terms.##5.2 IP Remedies. In the event of any third party claim that the Application, as provided, infringes a United States patent, copyright or trademark. eightCloud shall, at its option and expense and as Customer's exclusive remedy: (a) procure for Customer the right to continue using the Application; (b) replace or modify the Application so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer's access to the Application and refund any amounts previously paid for the Application attributable to the remainder of the then-current term of this Agreement. eightCloud will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Application (i) after it has been modified by Customer or a third party without eightCloud's prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by eightCloud where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF EIGHTCLOUD AND CUSTOMER'S EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF INTELLECTUAL PROPERTY. ##5.3 Disclaimers. Except for the express warranties specified in Section 5.1 above, THE APPLICATION IS PROVIDED "AS IS" AND AS AVAILABLE, AND EIGHTCLOUD MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing: (a) eightCloud does not warrant that the Application will perform without error or immaterial interruption; and (b) eightCloud does not warrant the security or protection of any Customer Data.##6 Confidential Information.##6.1 "Confidential Information" means (a) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, Customer Data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as "confidential," "proprietary" or some similar designation and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in clause (a). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. Confidential Information includes, without limitation, documentation, specifications, pricing, disclosures in connection with the Application and the terms and conditions of this Agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors. ##6.2 Nondisclosure. Information and materials will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) lawfully available to the public through no act or omission of the receiving party; (b) in the receiving party's lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party. The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other's Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 6.2 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.##7 Indemnification.##Customer will indemnify, defend, and hold harmless eightCloud, as well as its licensors parents, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively the "eightCloud Parties") from and against any and all losses, claims, suits, actions, liabilities, costs, and expenses (including taxes, fees, fines, penalties, interest, expenses of investigation, and attorneys' fees and disbursements) arising out of or related to Customer's use of the Application, including without limitation: (a) claims that eightCloud's processing, management, or use of Customer Data violates any contract or any law, rule, or regulation in any jurisdiction; and (b) claims by Customer's own customers or its employees, Users, business partners, or affiliates.##8 Limitation of Liability.##THE AGGREGATE, CUMULATIVE LIABILITY OF EIGHTCLOUD, INCLUDING OF THE EIGHTCLOUD PARTIES, UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO EIGHTCLOUD DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN ADDITION, NEITHER EIGHTCLOUD NOR THE EIGHTCLOUD PARTIES WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF THE PARTY TO BE CHARGED IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 8, eightCloud's and the eightCloud Parties' liability will be limited to the maximum extent permissible.##9 Termination.##9.1 Termination for Convenience. Either party may terminate this Agreement, effective upon the expiration of the then-current term, by notifying the other party in writing at least 1 business day prior to the expiration of such term. Customers may cancel their account at any time through their account at AppExchange.com, and it will terminate at the end of the current term (monthly or yearly) automatically. In the case of free trials, notifications provided through the Application indicating the remaining number of days in the free trial shall constitute notice of termination. eightCloud reserves the right to terminate any trial period, at any time without notice.##9.2 Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.##9.3 Effects of Termination. The following provisions will survive termination of this Agreement: (a) Sections 2, 3.1 - 3.1, 6 - 8, 9.3 and 10 of this Agreement; and (b) any other provision of this Agreement that must survive termination to fulfill its essential purpose.##10 Miscellaneous.##10.1 Integration; Severability. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any purchase order or other business form. ##10.2 Notices. Every notice or other communication required or contemplated by this Agreement by either party shall be delivered to the other party at the address on the Order Form by: (a) personal delivery; (b) postage prepaid, return receipt requested, registered or certified mail; (c) internationally recognized express courier, such as Federal Express, UPS or DHL; or (d) email with a confirmation copy sent simultaneously by postal mail. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given.##10.3 Amendment. This Agreement may be amended only by a written instrument executed by all parties hereto. ##10.4 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.##10.5 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (a) by a duly authorized representative of each party and (b) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.##10.6 Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.##10.7 Assignment & Successors. This Agreement shall not be assignable by Customer without the written consent of eightCloud. Any purported assignment in violation of this Section is void. Upon assignment, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties, their legal representatives, assignees and successors in interest.##10.8 Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Washington, without reference to such State's principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts in King County, Washington. In the event of any action or proceeding between the parties, whether by suit or arbitration, as to their rights and obligations under this Agreement, each party will bear its own costs incurred in connection therewith, including attorney's fees.
