SFX Master Subscription Agreement
BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE GET IT NOW – ORDERING PROCESS YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT“) GOVERNING YOUR USE OF THE SERVICES AND THIRD PARTY SERVICES (DEFINED BELOW) OFFERED BY Cloud Riverdale Pty Ltd SFX (“SFX”), AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK “I ACCEPT” BELOW (“EFFECTIVE DATE”).
The Service
This Agreement governs Your use of the software solutions owned by SFX or an Affiliate identified in an Order Form (collectively the “Service“). You agree that Your subscription to the Service is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by SFX regarding future functionality or features.
1. License Grant & Restrictions
1.1 Subscription to the Service. Subject to the terms of this Agreement, SFX hereby grants to You a non-sublicensable, non- transferable, non-exclusive subscription for Your use of the Service by the number of Users (and/or up to the volume of Service Events) as specified in an associated Order Form, in accordance with the Documentation and solely for Your internal business purposes. 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 Service. SFX and its licensors reserve all rights not expressly granted to You in this Agreement. You may allow Your Affiliates access and use of the Service. You are solely liable and responsible for Your Affiliates’ access and use of the Service and compliance with the terms and conditions of this Agreement.
1.2 Additional Use. If You wish to add additional Users or increase the number of authorized Service Events (“Additional Use”), You should contact SFX and SFX shall make the Service available for the Additional Use on the terms and conditions set forth in this Agreement. With respect to Additional Use: (i) the term of any additional Users’ access to the Service will be coterminous with the preexisting subscription term (either initial term or renewal term), and (ii) You will be responsible for any additional fees for any Additional Use exceeding the authorized number of Users or Service Events.
1.3 Restrictions. You shall not (i) license, sublicense, sell, resell, use as a service bureau, or otherwise use the Service for a third party’s benefit unless such use has been authorized by SFX; (ii) transfer, assign, distribute or otherwise commercially exploit or make the Service, SFX’s System or Content available to any third party not authorized by SFX; (iii) modify or make derivative works based upon the Service or the Content; (iv) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (v) reverse engineer or decompile the Service or SFX System; (vi) interfere with or make use of the Service in any manner not consistent with the Documentation, or (vii) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
2. Third-Party Services & Technology.
2.1 Reselling Third Party Services. SFX is an authorized reseller of certain third-party solutions and services offered by one or more non-Affiliate third parties that may be integrated into the Service or delivered separately (each, a “Third-Party Service”). Additional terms may apply to Your use of a Third-Party Service, and if additional terms do apply, they are set forth in the applicable Exhibit for the Third-Party Service. These Exhibits do not apply to You unless You have ordered the applicable Third- Party Service pursuant to an Order Form. In the event of conflict between these Exhibits and the rest of this Agreement, the Exhibits will control and take precedence. You understand and agree that (a) You acquire no rights, title or interest in or to any intellectual property rights underlying a Third-Party Service, except for the express rights granted to You under this Agreement, (b) SFX makes no representations, warranties, covenants or service level commitments of any kind regarding any Third-Party Service, and (c) SFX offers and assumes no indemnity obligations or other liabilities of any kind regarding each Third-Party Service; provided, however, that SFX will (x) provide You with customer support to the extent specified in the applicable Exhibit, and (y) pass through to You, to the extent practicable and permitted under SFX’s applicable Third-Party Service reseller agreement, the rights and benefits afforded to SFX under such reseller agreement. Subject to the foregoing, each applicable Third-Party Service will be deemed a part of the “Service” for purposes of this Agreement.
2.2 Configuration, Third Party Technology or Services. You acknowledge that the Service and its features and functionality are dependent on Your proper configuration of the Service, the availability of and proper performance third party apps and services, such as salesforce.com and Third Party Apps (defined below), and that SFX is not liable for performance issues or downtime of the Service to the extent caused by Third Party Apps or other factors outside of SFX’s control.
2.3 Third Party Apps. The Service has the ability to integrate with free and paid third-party applications chosen by you that offer additional or different features or functionality (“Third Party App”). Third Party Apps are completely optional and are chosen and installed at your sole discretion. Third Party Apps are owned and operated by third parties, and you have to manually install Third Party Apps into your organization to expose the feature(s) that they offer when integrated with the Service. In some cases, you must acquire a Third Party App in order to utilize certain features or functionality of the Service. You may have to pay additional fees for Third Party Apps, and you may have to agree to additional terms and conditions from the owner or provider of the Third Party App in order to use Third Party App. When you download or use a Third Party App, you acknowledge and agree that SFX may collect information from you regarding your use of the Third Party App in order to offer you the Service. Additionally, data may be transferred directly between the Service and the Third Party App. SFX offers Third Party Apps only as a convenience, and SFX is not responsible or liable for any aspect of the Third Party Apps. Use your own judgment when choosing whether or not to install and use Third Party Apps. SFX and its licensors shall have no liability, obligation or responsibility for any purchase or use of Third Party Apps. SFX does not endorse any Third Party App. SFX may remove integrations with Third Party Apps at its discretion, with or without notice.
3 Your Responsibilities
You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data.
4 Security, Customer Data; Support and Service Levels
The parties’ obligations and rights regarding security and Customer Data are described in the applicable Service Schedule. SFX will provide the support and service levels described in Exhibit B.
5 Intellectual Property Ownership
5.1 SFX. SFX and its licensors own all rights, title and interest, including all related Intellectual Property Rights, in and to the SFX System, the Content and the Service, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. The SFX name, the SFX logo, and the product names associated with the Service are trademarks of SFX or third parties.
5.2 Customer. You retain all right, title and interest in and to the Customer Data. You grant to SFX all necessary licenses and rights in and to Customer Data solely as necessary for SFX to provide the Service to You or as required by law. SFX will not knowingly use or access any Customer Data except as necessary to provide the Service or Support Services.
6 Fees, Billing, Renewal
6.1 Fees. Fees for the initial term of the Service are described in an associated SFX Order Form. Any renewal charge will be based on the then-current fees. SFX can modify the prices by providing You at least 45 days’ prior notice before the next renewal term of the Agreement. All fees due are payable in U.S. Dollars. SFX’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, excluding only Australia’s (federal or state) taxes based solely on SFX’s income.
6.2 Billing; Payment. SFX will issue an invoice to You on or about the Effective Date and at least 30 days before the subsequent anniversary of the Effective Date for renewal terms as specified in the associated Order Form. Such fees shall be paid annually in advance. SFX will invoice You in advance or otherwise in accordance with the Order Form. Unless otherwise stated, fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying SFX of any changes to such information. All payment obligations are non-cancelable and all amounts paid are nonrefundable, except as expressly set forth in the Agreement to the contrary. If You add Additional Users to the Service, allow use of the Service by more than the paid-for number of Users, or utilize Service Events in excess of the allowance associated with Your subscription, SFX will invoice You for the additional applicable fees.
6.3 Non-Payment. In addition to any other rights granted to SFX herein, SFX reserves the right to suspend Your access to and use of the Service if You fail to pay any undisputed amount owed on or before its due date. Overdue amounts are subject to a late charge of 1.0% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection. If You or SFX initiates termination of this Agreement, You will be obligated to pay the balance due on Your account.
7 Term
This Agreement commences on the Effective Date and will continue for an initial term of 1 year (“Initial Term”) from the Subscription Start Date specified in the associated Order Form unless terminated earlier as allowed in this Agreement. Upon the expiration of the Initial Term, the term of this Agreement will automatically extend for successive terms of 1 year at SFX’s then- current fees, provided that either party may terminate this Agreement or reduce the number of seats and/or Service Events, effective upon the expiration of the Initial Term or the then-current extension period, by notifying the other party in writing at least 30 business days prior to the expiration of the Initial Term or then-current extension term, as applicable. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. SFX reserves the right to terminate any trial period, at any time without notice.
8 Suspension & Termination
If You are in breach of this Agreement, SFX may suspend Your access to and use of the Service until You have cured the breach. Additionally, either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach within 30 days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason: (a) any amounts owed to SFX by You under this Agreement before such termination will become immediately due and payable, and (b) SFX will terminate Your access to or use of the Service. The rights and duties of the parties under Sections 5, 6, 8-13, 15 and 16 will survive the termination or expiration of this Agreement. If this Agreement is terminated by You in accordance with this paragraph due to SFX’s uncured breach, SFX will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will termination relieve You of Your obligation to pay any fees payable to SFX for the period prior to the effective date of termination.
9 Representations & Warranties
9.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
9.2 Data Warranty. You represent and warrant that You own or have obtained all rights, consents, permissions, or licenses necessary to allow the Service access to, or possession, manipulation, processing, or use of the Customer Data and User Details.
10 Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN AN APPLICABLE EXHIBIT, SFX AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, AND THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SFX AND ITS LICENSORS.
11 Mutual Indemnification
11.1 Your Indemnity. You shall indemnify and hold SFX, 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 attorneys’ fees and costs) arising out of, or in connection with a claim arising from or related to SFX System’s access to, or possession, manipulation, processing, or use of the Customer Data or User Details as is necessary to provide the Service.
11.2 SFX’s Indemnity. If any action is instituted by a third party against You based upon a claim that the Service, as provided and excluding any Third-Party Service, infringes a United States patent, copyright or trademark, then SFX will defend such action at its own expense on behalf of You and will pay all damages attributable to such claim which are finally awarded against You or paid in settlement of such claim. SFX may, at its option and expense, and in addition to defending You as set forth in the previous sentence, as Your exclusive remedy hereunder: (a) procure for You the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Your access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. SFX will have no liability to You for any infringement action that arises out of a breach of the terms and conditions of this Agreement by You or of the use of the Service (i) after it has been modified by You or a third party without SFX’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by SFX where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF SFXAND YOUR EXCLUSIVE REMEDY AGAINST SFXOR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM.
11.3 Procedure. A party seeking indemnification under this Section 11 will (a) give written notice of the claim promptly to the other party; (b) give the other party sole control of the defence and settlement of the claim; and (c) provide to the other party all available information and assistance.
12 Insurance; Limitations of Liability
12.1 During the term of the Agreement, SFX will, at its cost, maintain (a) industry standard insurance coverages, including, without limitation general commercial liability, worker’s compensation, and automobile policies, and (b) and any other insurance required by law in any state where SFX provides services under this Agreement. All policies will be written by reputable national insurance carriers.
12.2EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF ITS OBLIGATIONS IN SECTION 13, NEITHER PARTY’S NOR THEIR LICENSORS’ LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 24 MONTHS PRECEDING THE FIRST INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6.
12.3EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF ITS OBLIGATIONS IN SECTION 13, 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 THE SERVICE, OR THIS AGREEMENT, 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.
13 Confidentiality.
13.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”).
13.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Section 13.2. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
13.3 Exceptions. The Receiving Party’s obligations under Section 13.2 with respect to any Confidential Information of the Disclosing Party will not apply if such information: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Disclosure pursuant to Section 13.3(iii) shall not render Confidential Information as non-confidential or remove such Confidential Information from the obligations of the confidentiality obligations set forth in this Section 13.
13.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 13.4.
14 Assignment; Change in Control
This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.
15 Export & Anti-Corruption
The Services, Content, other technology SFX makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any 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. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of SFX’s 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 SFX’s legal department at info@riverdalecloud.com.
16 General
This Agreement shall be governed by NSW law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Sydney, NSW, Australia. No text or information set forth on any other purchase order, preprinted form or document (other than an associated SFX Order Form) shall modify the terms and conditions of this Agreement. In the event of a conflict between the terms in the main body of this Agreement and the terms in any SFX Order Form, the Order Form will prevail and control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between You and SFX. The failure of SFX to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by SFX in writing. This Agreement, together with any associated SFX Order Form, comprises the entire agreement between You and SFX and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, including any previously executed electronic version of a SFX subscription agreement, commonly known as a clickthrough or end user license agreement (“Clickthrough”). All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email with a fax confirmation sent on the same day. Any notice to SFX will be delivered to Cloud Riverdale Pty Ltd, Suite 1015, Level 10, 155 King Street, Sydney NSW 2000. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure. This Agreement may be signed by facsimile or electronic signature, and/or in counterparts, each of which will constitute an original, but all of which together will constitute the same instrument.
17 Definitions
As used in this Agreement the following terms have these meanings:
“Affiliate” means any entity (now existing or hereafter formed or acquired), which, directly or through one or more intermediaries, controls, is controlled by, or is under common control with, another entity. Ownership of fifty percent (50%) or more of the voting stock, membership interests, partnership interests, or other equity of an entity shall be deemed to be in control over such entity.
“Appropriate Security Measures” means commercially reasonable technical, physical and procedural controls to (i) protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties, and unauthorized access by employees or contractors employed by SFX, and (ii) prevent the introduction of Malicious Code into the Service and Content.
“Business Hours” shall mean the hours between 7 a.m. and 6 p.m., Mountain Time, Monday through Friday in North America, and between 9 a.m. and 5 p.m. at the SFX offices in Sydney, Australia, excepting recognized national holidays.
“SFX System” means the hardware, software, network equipment, and other technology used by SFX to deliver the Service, and any other of SFX’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by SFX in providing the Service.
“Content” means the visual information, documents, software, products and services contained or made available to You in the course of using the Service, other than Customer Data.
“Customer Data” means any information (including without limitation personally identifiable information and Customer Templates) provided, made available, or submitted by You to the Service or retrieved by the Service from Your salesforce.com account other than User Details.
“Customer Template” means, with regard to the Composer services, a Customer-created template uploaded to the salesforce.com Service by You and intended for use with the Service.
“Documentation” means SFX’s published documentation, knowledge base articles and other content, and technotes that are generally made available by SFX to all customers, including without limitation the materials located at www.cloudriverdale.com.au/support.
“Excluded Downtime” means any time the Service is not available because of a Force Majeure or Planned Downtime.
“Force Majeure” means events or circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SFX’s employees), telecommunications or network failures or delays, service or computer failures involving services, hardware, or software not within SFX’s possession or reasonable control, and acts of vandalism (including network intrusions and denial of service attacks).
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means a SFX order form signed by authorized representatives of each party describing the services purchased, associated fees, and other terms agreed to by the parties.
“Planned Downtime” means any period of time during which the Service is unavailable due to SFX’s planned maintenance and support of the Service or SFX System for which SFX gives You at least 24 hours prior notice. Except for urgent circumstances (e.g., a system failure or security threat), Planned Downtime may occur from 10:00 p.m. Friday through 4:00 a.m. Monday, Mountain Time.
“salesforce.com Service” means the service provided by salesforce.com to which You must be a subscriber in order to obtain the Service.
“Service Event” means the execution of a single SFX URL triggered via link or button, or any programmatic means.
“Service Schedule” means an applicable SFX service schedule containing terms and conditions specific to a particular Service. Service Schedules are attached in Exhibit C.
“Support Incident” means (i) a basic question related to the use or configuration of the Service where the use or configuration is consistent with guidance in the Documentation, (ii) a reproducible non-conformity in the Service causing the Service not to operate in substantial conformance with the applicable Documentation. Support Incidents do not include issues or support related to or arising from the programmatic execution of the Service using Apex, Visualforce, JavaScript or other programming tools.
“Support Services” means technical assistance provided by SFX personnel only to Your salesforce.com Administrator(s) relating to Support Incidents.
“Total Minutes” means the total number of minutes in the calendar quarter at issue.
“Unplanned Downtime” means any time the Service is not available because of an event or circumstance other than Planned Downtime.
“User(s)” means Your named employees, representatives, consultants, contractors, partners, or agents who are authorized to use the Service by You through the Salesforce LMA (License Management Application) or the “User Management” facility of the Service.
“User Details” means basic information collected by SFX about Your Salesforce.com users’ authorized by You to use the Service which is used for subscription management, activity logging, and technical support purposes.
Exhibit A [intentionally blank]
Exhibit B
SFX Service and Support Level Agreement
This Service and Support Level Agreement (“SLA”) covers the following service levels in relation to the Subscription Service: availability, problem response support, problem resolution support, and system performance. SFX commits to provide 99.7% uptime with respect to the Customer’s Service during each calendar month of the Term, excluding regularly scheduled maintenance times and event caused by Force Majeure.
If, in any calendar month, this uptime commitment is not met by SFX and You were negatively impacted (i.e., were unable to create output files from the Service and failed due to the unscheduled downtime of the Service), You may, as Your sole and exclusive remedy, terminate this Agreement pursuant to the termination section of the Agreement and receive a refund of any prepaid subscription fees for the remainder of the then-current subscription term.
Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least forty-eight (48) hours in advance of the maintenance time and typically is scheduled to occur at night on the weekend, and takes less than five (5) to ten (10) hours each month. SFX, in its sole discretion, may take the Service down for unscheduled maintenance and, in that event, will attempt to notify customer in advance. Such unscheduled maintenance will be counted against the uptime guarantee.
The Service Availability Uptime will generally be equal to or greater than 99.7% in each calendar month and the Service will perform in substantial conformance with the Documentation, except for Excluded Downtime, where
Uptime = (Total Minutes – Unplanned Downtime – Excluded Downtime) ➗(Total Minutes – Excluded Downtime) ✕100. 3. Support Services and Problem Resolution
Support Services: If You have paid SFX all applicable fees due, SFX will provide Support Services in cases limited to SFX service during Business Hours in the English language. To receive Support Services, You may email support@riverdalecloud.com.au or telephone one of the SFX offices as listed on the SFX website Support page during the specified Business Hours for that office. Support Services will be subject to the specified allowance stated in an associated Order Form for the current subscription term, if any.
Problem Response and Resolution: SFX will use commercially reasonable efforts to address Support Incidents in accordance with the schedule below.
| Problem Severity Level | Response Time | Resolution Time |
| Level 1:
The Service is not available for use, including the failure of any documented feature that is required to complete the generation of an output file. |
SFX will respond to and commence efforts to address Level 1 problems within one (1) hour after Your report of such problem is received by SFX or SFX’s detection of such problem, whichever is earlier. | SFX will use commercially reasonable efforts, twenty-four (24) hours per day, seven (7) days per week, to resolve or provide You with an acceptable work-around for the applicable Level 1 problem. |
| Level 2:
A documented feature is not available but does not prevent the generation of an output file. |
SFX will respond to and commence efforts to address Level 2 problems within eight (8) business hours after You report such problem during Business Hours or SFX’s detection of such problem, whichever is earlier. | SFX will use commercially reasonable efforts, during normal Business Hours, to resolve or provide You with an acceptable solution for the Level 2 problem within five (5) business days after You report such problem or SFX’s detection of such problem, whichever is earlier. |
| Level 3:
A documented feature is impaired but does not prevent the generation of an output file. |
SFX will respond to and commence efforts to address Level 3 problems within seventy- two (72) hours after You report such problem during Business Hours or SFX’s detection of such problem, whichever is earlier. | SFX will use commercially reasonable efforts, during normal Business Hours, to resolve or provide You with an acceptable solution for the Level 3 problem within sixty (60) calendar days after You report such problem or SFX’s detection of such problem, whichever is earlier. |
You acknowledge that the Service is dependent on Your implementation and configuration of the Service and the availability and performance of technology from third-party software and hardware vendors including but not limited to salesforce.com, Salesforce AppExchange products and custom applications, Microsoft, Google, the providers of Internet browsers, providers of connectivity, and other third party providers. SFX has no control over, and is not liable for performance issues or downtime of the Service to the extent caused by such factors.
Encryption Gateways and Associated Third Party Technologies Encryption Gateways and associated third party technology that require any re-direction of SFX-to-Salesforce connections are not subject to this Service Level Agreement. You may utilize such encryption solutions solely at your own risk.
Exhibit C – SFX Service Schedule
In this Service Schedule, the term “Service” refers only to the following services offered by SFX: SFX – Salesforce Xero. If You are purchasing subscriptions to any of the Services, as indicated on the applicable SFX Order Form, then the terms of this Service Schedule apply to those Services.
SFX SERVICE OVERVIEW
1 The Service
SFX hosts, operates, and maintains the Service.
2 Your Responsibilities
You shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and will notify SFX promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SFX immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of Content that is known or suspected by You or Your Users; and (iii) not impersonate another Service user or provide false identity information to gain access to or use the Service. You will not attempt to or use Your access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein.
3 Security; Customer Data