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Subscription Terms And Conditions

SCHEDULE 1: GENERAL TERMS AND CONDITIONS

1.GENERAL


Flowhaven is the supplier of the software system known as Flowhaven end-to-end brand productization platform. The software system is a brand licensing and brand productization management solution intended for commercial work and creative collaboration. The software is provided as a service over the Internet.

2.DEFINITIONS

2.1 “Agreement” shall mean the Subscription Agreement to which this Schedule 1 is attached to and all other Schedules attached to the Subscription Agreement. A reference to a particular clause of the Agreement shall be deemed to be a reference to such clause of the Subscription Agreement.

2.2 “Additional Services” shall have the meaning assigned to in clause 13 herein.

2.3 “Authorized Users” means Internal Users or Guest Users, as set forth herein. Authorized Users may be calculated based on user rights or log in quantities, as set forth on the cover page of the Agreement.

2.4 “CCPA” means the California Consumer Privacy Act of 2018.

2.5 “Customer’s Data” shall mean the data Customer stores in the Software Service which, for the avoidance of doubt, shall not include any data which may be accessed by way of a link or otherwise through the Software Service but in fact is stored in the system of (i) a third party storage provider or (ii) Customer.

2.6 ”Effective Date” shall mean the date on which the Parties have executed this Agreement, and if the Parties have executed the Agreement on different dates, the last of such dates.

2.7 “Error” shall, in respect of the Software Service, mean a material deviation in the Software Service as made available to Customer from the way it ought to have been made available as per the Software Description or this Agreement, and which negatively affects Customer’s use of the Software Service and which is not minor; and in respect to the Support Service, a material deviation in the manner the Service was performed from the way it ought to have been performed as per the Support Description or this Agreement, the consequence of which negatively affects Customer and which is not minor.

2.8 “Guest User” is an employee or other representative of a third party working for the Customer, such as a licensee, agent or subcontractor of the Customer.

2.9 “Internal User” shall mean an employee or director of the Customer.

2.10 “Ordered Modules” shall mean the ordered modules of the Flowhaven software set forth in the Agreement and further defined in Software Description. The Ordered Modules contain certain Salesforce components that are provided by Salesforce and are subject to the SFDC Service Agreement set forth in Schedule 3. Customer agrees to be bound by the SFDC Service Agreement set forth in Schedule 3

2.11 “Reseller Agreement” means the platform solution reseller agreement between Flowhaven and Salesforce as is in force from time to time.

2.12 “Salesforce” means Salesforce.com EMEA Limited and, where the context so requires, its corporate affiliates.

2.13 “Services” shall mean the Software Service, the Support Service, any Additional Services, as well as all other services performed by Flowhaven to Customer in connection to this Agreement.

2.14 “Software Description” shall mean the description relating to the features, functions and use of the Software Service attached to the Agreement as Schedule 2, and revised from time to time in accordance with clause 9.2, as it applies to the Ordered Modules.

2.15 “Software Service” shall mean the Ordered Modules of the cloud-based Flowhaven software provided by Flowhaven to Customer via the internet.

2.16 “Subscription Term” shall mean the subscription term set forth in the Agreement.

2.17 “Support Description” shall mean the description of the Support Service attached to the Agreement as Schedule 2.

2.18 “Support Service” shall mean the support service described in the Support Description.

3. GENERAL OBLIGATIONS OF THE PARTIES


3.1 Flowhaven shall provide the Services in accordance with this Agreement and with all such professional skill and care that a reasonable service provider would exercise under the circumstances.

3.2 In consideration of the Services, Customer shall pay the fees provided in the Agreement. Customer shall also render Flowhaven such assistance as may be necessary or expedient in order for Flowhaven to perform its obligations hereunder, including providing information and instructions when requested.

3.3 Both Parties shall act in good faith and reasonably take the other Party’s interests into account when performing their obligations and exercising their rights hereunder.

4. THE SOFTWARE SERVICE


4.1 Flowhaven shall, as of the first day of the Subscription Term, make the Software Service available to Customer in such a manner that the Software Service materially complies with the Software Description. The Software Service is made available as a service over the Internet. Flowhaven’s liability for providing the Software Service shall not extend to the performance of any third-party service providers.

4.2 The Software Service shall comprise only the Ordered Modules. Nothing in this Agreement shall be construed as creating any obligation on Flowhaven with respect to any other module or software. For the avoidance of doubt, the use of the Software Service requires that the Customer acquire a license to a separate cloud storage service provided by a third party (such as Dropbox, One Drive or Google Drive). Such third party license is not included in the Software Service. Such third party license is not included in the Software Service. Such third party services shall be excluded from Flowhaven’s liability and subject to terms and conditions defined by the respective suppliers of each third party service.

4.3 The Ordered Modules contain certain Salesforce components that are provided by Salesforce and are subject to the SFDC Service Agreement set forth in Schedule 3. Notwithstanding any other term herein, Flowhaven shall not be liable for a breach of its obligations hereunder to the extent Salesforce interrupts, ceases or otherwise makes a faulty provision of the Salesforce components. Flowhaven however agrees to use commercially reasonable efforts to mitigate the impact thereof on the provision of the Software Service.

4.4 At least some of the Ordered Modules have limited or minimum amount of permitted Authorized Users or other limited or restricted terms and conditions regarding the use of the Software Service. Customer accepts that Flowhaven or Salesforce may audit the Customer’s use of the Ordered Modules through the Software Service or by other means and Customer shall reasonably cooperate with Flowhaven and/or Salesforce in conducting the audit. If Salesforce conducts the audit, it shall have the right to provide the results of the audit to Flowhaven and if Flowhaven conducts the audit, it shall have the right to provide the results of such audit to Salesforce. Both the Customer and Flowhaven/Salesforce shall be responsible for their own costs relating to such audit unless otherwise agreed between the Parties.

4.5 If the audit reveals unauthorized use of the Software Service, the Customer agrees to pay to Flowhaven within thirty (30) days’ notice from Flowhaven’s written request, the difference between the price charged by Flowhaven to Customer for the applicable Ordered Module and the then-current list price of Flowhaven for the full-use version of such Ordered Module for all subscriptions showing unauthorized use beginning with the date of the first violation and ending at the end of the then current Subscription Term. Upon such payment, all subscriptions subject to unauthorized use are converted into full-use subscriptions for the remainder of the ongoing Subscription Term.

4.6 Customer itself shall ensure that its networks, workstations and other equipment meet the technical requirements for the Software Service and that they are configured in an appropriate manner. Customer understands that it may be required to install third-party software on its equipment in order to use the Software Service.

5. INTELLECTUAL PROPERTY; LIMITED LICENSE

5.1 All intellectual property rights as well as all rights, title and interest in the Software Service, and in the deliverables of the Additional Services, shall belong to, vest in and be the exclusive property of Flowhaven or its licensors. Nothing in this Agreement shall be construed as an assignment or transfer of title to an intellectual property right from Flowhaven to Customer.

5.2 Subject to the terms and conditions of this Agreement, Flowhaven grants to Customer a worldwide, limited term, non-exclusive, non-transferable, non-sublicensable, royalty-free (except as provided herein) license to use the Software Service and the deliverables of the Additional Services for its own internal business purposes. The Customer shall not have a right to sublicense without Flowhaven’s express prior written consent, which shall not be unreasonably withheld. However, Customer may assign this Agreement to any of its affiliates by advance written notice to Flowhaven.

5.3 The license granted pursuant to clause 5.2 is limited to (i) the maximum amount of Authorized Users; and (ii) the Authorised User’s respective usage rights. The amount of Authorized Users and their respective usage rights are set forth in the Agreement.

5.4 The user accounts of the Authorized Users are personal and may not be shared. The Customer may however reassign user accounts to new individuals who are replacing individuals who have terminated employment with Customer or a third party working for the Customer, or otherwise changed job status or function and no longer require use of the Software Service.

5.5 Customer remains responsible for the manner in which its personnel or contractors (including Authorized Users) use the Software Services. Any breach of such person of this Agreement shall be deemed to be a breach of the Agreement by Customer.

6. RESTRICTIONS

6.1 Customer shall not (i) sell, resell, license, sublicense, distribute, rent or lease the Software Service or include the Software Service in a service bureau or outsourcing offering; or (ii) use the Software Service to develop, enhance, market or demonstrate services, software or products that are competitive with the Software Service. Further, except as may be allowed by mandatory applicable law, Customer shall not (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute the Software Service by any means; or (ii) reverse engineer, disassemble, or otherwise reduce to human-perceivable form all or any part of the Software Service.

7. INTERRUPTION IN THE SOFTWARE SERVICE

7.1 Flowhaven shall use commercially reasonable efforts to keep the Software Service available continuously (i.e., on a 7/24/365 basis). Flowhaven cannot represent or warrant, however, that the provision of the Software Service will be interruption-free or free from errors.

7.2 Flowhaven shall be entitled to take the Software Service offline (i.e., make it unavailable to Customer) as necessary or expedient for its, or its subcontractors, maintenance, updating, or other similar reasons. In such case, Flowhaven shall use all reasonable efforts to notify Customer in advance.

7.3 Flowhaven shall also be entitled to take the Software Service offline in response to a serious threat to the security or integrity of the Software Service and keep it offline until such time as it can assure itself of the Software Service’s continued security and integrity. Flowhaven shall use commercially reasonable efforts to resolve the situation quickly.

7.4 Flowhaven shall also be entitled to take the Software Service offline if Flowhaven justifiably suspects that Customer burdens or uses the Software Service in a manner that jeopardises the delivery of the Software Service to other users.

8. ADDITIONAL MODULES AND AUTHORIZED USERS

8.1 Customer may from time to time request that additional modules or authorised users are added to the subscription, always provided that any such additional modules or users are coterminous with the existing Ordered Modules and Authorized Users. The Parties may then agree in writing on the terms and fees for such addition by executing a new Subscription Agreement.

8.2 Unless the Parties have agreed otherwise in writing, the terms of these General Terms and Conditions shall apply with respect to the newly Ordered Modules and Authorized Users, except that the Subscription Term in respect of the newly Ordered Modules shall be deemed to start fourteen (14) days from the date of signing by both Parties.

8.3 For the avoidance of doubt, the Customer has no right to decrease the amount of Ordered Modules or Authorized Users during the Subscription Term. If the Customer wishes to decrease the amount of Ordered Modules or Authorized Users, the Customer shall provide Flowhaven with such request in writing at least ninety (90) days prior to the renewal date of the Subscription Term. If the Parties agree on such change of order, the change shall become effective from the beginning of the next Subscription Term.

9. CHANGES TO THE SOFTWARE SERVICE

9.1 Flowhaven may from time to time at its discretion make such changes to the Software Service that do not materially alter the functionality of the Software Service and that do not cause the Software Service to materially deviate from the Software Description.

9.2 Flowhaven may also from time to time update or make changes to the Software Service even if they cause the Software Service to no longer conform to the Software Description. In these cases, Flowhaven shall give Customer notice of the updated version being taken into use at least thirty (30) days prior to the change becoming effective. Flowhaven shall ensure that all Customer’s Data remains available in any updated version of the Software Service as well. Flowhaven shall also provide a description of the changes, which are deemed to replace the relevant parts of the Software Description.

10. THE SUPPORT SERVICE

10.1 Flowhaven shall as of the beginning of the Subscription Term provide Customer the Support Service as detailed in the Support Description. Flowhaven shall use commercially reasonable efforts in providing the Support Service, but shall not be under an obligation to achieve a specific end-result. Flowhaven shall at all times have access to the Software Service in order for Flowhaven to be able to support the Software Service. For the aforementioned purposes, Flowhaven has admin user rights to the Software Service.

11. FEES AND PAYMENT TERMS

11.1 In consideration of the Service provided hereunder Customer shall pay fees as provided for in the Agreement.

11.2 Flowhaven may update the fees or fee calculation method per Authorized User (e.g. fixed user rights or log in quantities) set forth in the Agreement once every calendar year by giving written notice to Customer of the updated fees at least sixty (60) days prior to the updated fees coming into effect. The updated fees replace the original fees set forth in the Agreement.

11.3 Should Customer not accept Flowhaven’s updated fees or fee calculation method, it may terminate this Agreement no later than thirty (30) days prior to the updated fees coming into effect. Such termination shall become effective on the date the updated fees come into effect. Should the Parties agree on a mutually acceptable updated fees prior to the terminating becoming effective, the termination shall be deemed expired and ineffective.

11.4 For the avoidance of doubt, and notwithstanding the above, in case of an order of additional Ordered Modules or Authorized Users by the Customer, additional fees are separately agreed between the Parties by executing a new Subscription Agreement.

11.5 All fees and other prices specified in the Agreement shall include all public charges determined by the authorities and effective on the effective date of the Agreement. Should the amount of public charges determined by the authorities, or the collection basis of such charges, change due to changes in regulations or taxation practice, the prices specified in the Agreement shall be revised correspondingly.

11.6 All invoices shall be due net 14 days from their date. In the event of late payment, Flowhaven shall be entitled to (i) charge late payment interest of 8%; or (ii) suspend Customer’s access to the and use of the Services until payment in full is received.

12. INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY

12.1 Flowhaven represents and warrants that the Software Service does not infringe any third-party intellectual property rights in the country where Flowhaven is established.

12.2 In the event the Software Service does infringe a third-party intellectual property right in breach of the above warranty, Flowhaven shall indemnify and hold Customer harmless from any loss or damage incurred by Customer as a result of such infringement, as provided below:

12.3 Customer shall without delay notify Flowhaven of any claim made against it alleging the Software Service or its use infringes any third-party intellectual property rights in breach of clause 12.1 above. Customer shall authorize Flowhaven to defend the claim on behalf of Customer. Customer shall render Flowhaven any such assistance as may be necessary or expedient for a proper defense. In the event Customer has conducted itself in accordance with this clause, Flowhaven shall pay all damages awarded in a trial and potential settlement agreed by Flowhaven to a third party.

12.4 If Flowhaven reasonably believes or a court of competent jurisdiction finds that the Software Service or Customer’s use thereof is in breach of clause 12.1 above Flowhaven shall additionally at its discretion without additional cost to Customer

  • procure for Customer the right to continue to use the Software Service;

  • alter or change the Software Service so as to bring the infringement to an end; or

  • if neither of the above options is possible on a commercially reasonable basis, terminate this Agreement.

12.5 Flowhaven shall not, however, be liable for any infringement or claim thereof in the event the claim

  • is made by an corporate affiliate of Customer;

  • is due to Customer’s Data, a change to the Software Service made by Customer, or the Flowhaven having followed instructions given by Customer;

  • is due to use of the Software Service in conjunction with third-party software package or service for which Customer has not obtained Flowhaven’s approval; or

  • which could have been avoided by using a patch, upgrade or otherwise amended software provided by Flowhaven.

12.6 This clause 12 exhaustively sets out Flowhaven’s liability, and Customer’s remedies, for any infringement of third-party intellectual property rights.

13. ADDITIONAL SERVICES

13.1 The Parties may also agree in writing on the performance of other Services than the Software Service and the Support Service, such as small-scale development work (“Additional Services”). Flowhaven shall use commercially reasonable efforts in providing the Additional Services, but shall not be under an obligation to achieve a specific end-result.

13.2 The Parties may, however, as a limited exception to the aforesaid, on a case-by-case basis in writing agree that Flowhaven shall provide Services to achieve a specific end-result (such as, e.g., the addition of a specific features to the Software System on a project basis).

14. CUSTOMER’S DATA

14.1 All rights and title in Customer’s Data shall vest in Customer or its licensors. Customer grants Flowhaven a limited, worldwide, non-exclusive, royalty-free, sub-licensable license to Customer’s Data as necessary for the provision of the Services under the terms of this Agreement. This may include accessing Customer’s Data for the purpose of administering and configuring the Software Service.

14.2 Customer represents and warrants that Customer’s Data complies with all applicable laws and that it does not infringe any third-party intellectual property rights anywhere in the world. To the extent Customer’s Data does include material protected by such third-party intellectual property rights, Customer represents and warrants that it has obtained a sufficient licence to the material to grant Flowhaven the licence under clause 14.1 herein. In the event Customer’s Data does infringe a third-party intellectual property right in breach of the warranty in this clause 14.2, Customer shall indemnify and hold Flowhaven harmless from any loss or damage incurred by Customer as a result of such infringement.

14.3 Except as expressly set forth in this Agreement, Flowhaven disclaims all responsibility for the accuracy, quality, integrity, and legality of Customer’s Data.

14.4 In the event Flowhaven processes personal data in the course of providing the Services as set forth hereinafter, it does so on behalf of Customer who shall be deemed the data controller (or business, as applicable). Each Party shall comply with applicable data protection legislation and regulation in force from time to time, including those deriving from Directive 95/46/EC, the General Data Protection Regulation (Regulation (EU) 2016/679), and the CCPA, and any implementing guidance.

14.5 The terms between Salesforce and Customer relating to the return of Customer’s Data upon the termination of this Agreement are set forth in clause 6 of Schedule 3. Flowhaven itself shall have no responsibility in relation to Customer’s Data upon the termination of the Agreement.Confidentiality

15. CONFIDENTIALITY

15.1 The Parties agree to keep confidential any information received from the other Party which is marked confidential or which must reasonably be understood to be confidential and to not use such information for any other purpose than those under this Agreement.

15.2 The confidentiality obligation under clause 15.1 shall not apply to information or material that

  • is publicly available or otherwise public;

  • the receiving Party has received from a third party without any duty of confidentiality;

  • the receiving Party was in possession of without any duty of confidentiality prior to receiving it from the disclosing Party;

  • the receiving Party has developed independently without taking advantage of any materials or information received from the disclosing Party; or

  • the receiving Party is required to disclose under law or governmental order.

15.3 In the event the Agreement ends for any reason, a Party must at the other Party’s request stop using any information or material received from the other Party and return or destroy the material and all its copies in a reliable manner. A Party is entitled, however, to retain such materials as required by law or regulatory order. For the avoidance of doubt, a separate procedure for the return of Customer’s Data is referred to in clause 14.5.

15.4 The aforesaid notwithstanding, both Parties are always entitled to use any professional skill and experience gained in connection to this Agreement. In addition, Flowhaven shall be entitled to use the Customer’s name and the particular Customer case as a reference in Flowhaven’s marketing, including without limitation Flowhaven website, social media accounts and offers, unless otherwise agreed between the Parties in writing.Information security

16. INFORMATION SECURITY

16.1 Flowhaven will maintain commercially reasonable administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data resident in the Software Service.

16.2 Neither Flowhaven nor Salesforce shall have any responsibility whatsoever for data which may be accessed by way of a link or otherwise through the Software Service but in fact is stored in the system of (i) a third party storage provider; or (ii) Customer. It is Customer’s responsibility to put in place and to maintain safeguards for the security, confidentiality and integrity (including without limitation the responsibility to maintain back-ups) of such data.

17. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

17.1 Flowhaven disclaims all representations, warranties, and liabilities other than those explicitly provided for in this Agreement.

17.2 Neither Party shall be liable for any indirect or consequential damage or loss. For the avoidance of doubt, indirect damage is understood to include, e.g., loss of profit, loss of use, loss of contracts, loss of production, loss of data and all other forms of indirect loss.

17.3 The total aggregate liability of each Party in connection hereto, whether in contract or tort, shall not exceed the sum of the fees paid by Customer hereunder during the six (6) full calendar months immediately preceding the event giving rise to the Party’s liability.

17.4 The limitation of liability provided for in Clauses 17.2 and 17.3 shall not apply to:

  • wilful misconduct or gross negligence;

  • Customer’s indemnification obligation in Clause 14.2

  • Clauses 5 and 6 hereof; or

  • any other liability towards a Party which cannot be limited by mandatory law.

18. ERRORS IN THE SERVICES

18.1 Flowhaven shall be liable to cure any Errors in the Software Service as part of and as provided for in connection with the Support Service.

18.2 In the event there is an Error in the way Flowhaven performs or has performed the Support Service itself, Customer shall be entitled to require that Flowhaven re-perform the Support Service to the extent relevant, reasonable, and possible.

18.3 Flowhaven’s liability, and Customer’s remedies, for any errors in the Services are exhaustively set out in this clause 18 and, with respect to Errors sufficiently serious to permit termination, in clause 22 (“Term and Termination”).

19. FORCE MAJEURE

19.1 Neither Party is liable for any non-performance, delay, damage, nor loss that is due to an event beyond the control of the Party and the consequences of which the Party could not by reasonable efforts prevent or overcome. War, insurrection, earth quake, flood, other comparable acts of nature, general interruption of traffic, telecommunications, power distribution, import or export restriction, strike, lockout, boycott, and other comparable industrial action shall all be regarded as force majeure events unless otherwise shown. Strikes, lockouts, boycotts and comparable industrial action shall all be deemed force majeure events even if a Party is party to such action or the target thereof.

19.2 A force majeure event with respect to a Party’s subcontractor shall also be regarded as a force majeure event with respect to the Party itself if it cannot obtain the object of the subcontractor’s performance from elsewhere.

19.3 A Party must give the other party notice in writing of force majeure and the ending thereof without undue delay.

20. EXPORT RESTRICTIONS

20.1 Customer shall comply with all applicable laws and regulations on export restrictions that may be applicable to this Agreement. Customer shall not export or re-export the Software Service or its documentation or permit or suffer it to be used in violation of said restrictions.

21. USER NAMES AND PASSWORDS

21.1 Customer shall ensure that its user names and passwords to the Software Service are treated as Confidential Information. The user names and passwords are user-specific. The Customer shall be responsible for and shall inform the users that only the relevant user is using the user name and password.

21.2 In the event either Party becomes aware or reasonably suspects that any of Customer’s passwords have become known to a third party it shall promptly notify the other Party at which time Flowhaven may suspend the relevant user accounts until it has assured itself of the continued security of the Software Service and the integrity of any data stored therein. Flowhaven may also elect to monitor the use of such accounts in order to detect and trace any misuse of the Software Service.

21.3 Customer shall at Flowhaven’s instructions change its user names and/or passwords as may be necessary or expedient in order to ensure the continued security of the Software Service. Flowhaven may also provide Customer entirely new user accounts for the same reason, which accounts Customer shall thereafter use when accessing the Software Service.

22. TERM AND TERMINATION

22.1 This Agreement shall come into effect on the Effective Date and shall remain in force as long as the Customer has at least one ongoing Subscription Term, for the duration of the Subscription Term, unless terminated earlier in accordance with the provisions herein.

22.2 Customer may terminate this Agreement during one (1) month’s period from the Effective Date (so-called “on-boarding period”), with or without cause, by giving Flowhaven one (1) day’s written notice. After the on-boarding period the Agreement shall remain in force for the duration of the Subscription Term, unless terminated earlier in accordance with the provisions herein.

22.3 Each Party may terminate this Agreement with immediate effect in the event the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of having been notified in writing of the breach and the non-defaulting Party’s intent to terminate pursuant to this clause 22.3.

22.4 Flowhaven may terminate this Agreement with immediate effect in the event that Salesforce (i) terminates the Reseller Agreement; and (ii) Flowhaven cannot on commercially reasonable terms procure the continued provision of the Salesforce components required for the Software Service until the next renewal date of the Subscription Term. If Flowhaven terminates this Agreement in accordance with this clause, Flowhaven shall refund any prepaid fees for the period after such termination becoming effective.

22.5 Customer may also terminate this Agreement where it does not accept Flowhaven’s updated fees pursuant to clause 11.3.

22.6 Flowhaven may also terminate this Agreement under clause 12.4(c) herein and on the conditions set out therein.

22.7 In the event this Agreement ends for any reason, including by termination, neither Party shall be required to return or make restitution for any performance, including payment, made by the other Party. Any invoices or debts outstanding at the time of termination shall not be affected by the agreement ending.

22.8 In the event this Agreements ends for whatever reason such provisions herein that by their nature are intended to remain in effect, such as clauses 14, 15 and 29, shall remain in effect after such ending.

22.9 Neither Party shall have any right to terminate or otherwise end this Agreement except as provided for herein.

22.10 After this Agreement is terminated or otherwise comes to and for whatever reason, Flowhaven may delete any copies of Customer’s Data pursuant to clause 14.5 herein.

23. ASSIGNMENT

23.1 Flowhaven is free to assign this Agreement in whole or in part.

23.2 Customer may not assign the Agreement in whole or in part without the prior express written consent of Flowhaven. Such consent shall not be unreasonably withheld if Customer wishes to assign the Agreement in whole to a corporate affiliate or any third party to which a part of its business is transferred if the assignee agrees to adhere to the Agreement in writing.

24. Subcontractors

24.1 Both Parties shall be entitled to use subcontractors in the performance of their obligations under this Agreement. Each Party shall, however, be liable for the performance of its subcontractors as for its own.

25. Entire Agreement

25.1 This Agreement constitutes the entire understanding and agreement between the Parties with respect to the subject matters covered and supersedes all prior negotiations, understandings, and agreements, whether written or oral, relating to the subject matters covered.

26. Amendments; No waiver

26.1 Any amendment to or variation of this Agreement shall be in writing and shall have no effect before signed by duly authorized representatives of both Parties.

26.2 Any failure or delay by a Party in exercising any right or remedy will not constitute a waiver. No waiver of any term or condition of this Agreement or of any right or remedy arising in connection therewith shall constitute a continuing waiver. A waiver is not valid or binding on the Party granting that waiver unless made in writing.

27. References to law

27.1 A reference to a statute or legal provision made herein shall be construed as a reference to the statute or provision as in force from time to time. If the referred to statute or provision has been repealed or replaced, the reference shall be construed as being to the closest equivalent statute or provision as in force from time to time.

28. Expenses

28.1 Each Party shall bear their own costs and expenses relating to the transaction contemplated in this Agreement.

29. Severability

29.1 If any part of this Agreement is determined to be invalid or unenforceable, such determination shall not invalidate any other provision of this Agreement. The Parties shall attempt, through negotiations in good faith, to replace any such in-valid or unenforceable part of the Agreement with a comparable provision that is enforceable and valid. The failure of the Parties to reach an agreement on such a replacement provision shall not affect the validity of the remaining provisions of this Agreement.

30. GOVERNING LAW; DISPUTE RESOLUTION

30.1 This Agreement, including the arbitration clause, and any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination or validity thereof, are governed by the laws of the State of California without regard to its principles and rules on conflict of laws.

30.2 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be resolved by binding arbitration before the American Arbitration Association (“AAA”) in Los Angeles County, California, in accordance with the rules then in effect of the AAA, and judgment on the award rendered in such arbitration award shall be final and binding upon the Parties and shall be entered in any court having jurisdiction thereof. With respect to any such judicial action the Parties hereby submit to the jurisdiction of the federal and state courts in the State of California. In agreeing to arbitration, each Party understands that it is forgoing and giving up any right the Party may have to a jury trial and adjudication under any rules of court that do not apply in arbitration.


31. NOTICES
32. DATA PROCESSING

32.1 This clause 32 sets out the terms and conditions for the processing of Personal Data by Flowhaven (Flowhaven also referred to as ‘Data Processor’ or “Service Provider”) on behalf of the Customer (Customer also referred to as ‘Data Controller’ or “Business”) in connection with the Flowhaven Subscription Agreement between the Customer and Flowhaven (‘Agreement’). Any terms and conditions relating to the processing of Personal Data in the Flowhaven Subscription Agreement or the General Terms and Conditions shall be supplemented by the terms herein. In case of discrepancy between the terms of the Flowhaven Subscription Agreement, the General Terms and Conditions and this the provisions of this clause 32 shall prevail with respect to Personal Data.

32.2 This clause 32 shall be applied to the extent that Flowhaven acts as the Data Processor and the Customer as the Data Controller with relation to Personal Data as defined in the Data Protection Legislation.

32.3 The following definitions are used in the context of this clause:

  • ‘Data Processor’ or means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller. Where the CCPA applies, any reference to Processor means a reference to ‘Service Provider’ as defined in that act.

  • ‘Data Protection Legislation’ means the Finnish Personal Data Act (523/1999, as amended), the EU’s General Data Protection Regulation (EU 2016/679), and the California Consumer Privacy Act of 2018 (“CCPA”), as amended or replaced from time to time, as well as any other applicable data protection legislation, as in force from time to time, and the orders and binding instructions of the data protection authorities;

  • ‘Data Subject’ means a natural person, whose Personal Data is being processed by the Data Processor under this clause 32 and the Agreement, including a Consumer as defined in the CCPA;

  • ‘Intellectual Property Rights’ means all proprietary and intellectual property rights, including but not limited to database rights, patents, copyrights, trademarks, trade secrets, know-how and any other comparable intangible property;

  • ‘Law’ means (i) any mandatory statute, regulation, by-law or subordinate legislation in force from time to time, to which a Party is subject and/or which is in force from time to time and applied within any jurisdiction where the Services are provided, including but not limited to the Data Protection Legislation; and (ii) any court order, judgment or decree or any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any regulatory body having jurisdiction over a Party or any of that Party’s assets, resources or business;

  • ‘Personal Data’ means any personal data or Personal Information, relating to an identified or identifiable natural person defined in more detail in the Data Protection Legislation;

  • ‘Personal Data Breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;

  • ‘Sell’ shall have the same meaning as ascribed to it in the CCPA;

  • ‘Services’ means any processing of Personal Data undertaken by the Data Processor in connection with the Agreement.

32.4 The Data Controller shall

  • process the Personal Data in compliance with the Laws and this clause;

  • specify the purpose and means of processing of Personal Data;

  • be entitled to give instructions to the Data Processor on the processing of Personal Data, which instructions shall comply with the applicable Data Protection Legislation; and

  • confirm upon signing this Flowhaven Subscription Agreement that (i) the processing stipulated under this clause meets the Data Controller’s requirements including, but not limited to, with regard to intended security measures and that (ii) it has provided the Data Processor with all necessary information in order for the Data Processor to perform the processing in compliance with the applicable Data Protection Legislation.

32.5 The Data Processor shall

  • process Personal Data in a professional manner and in compliance with Laws;

  • process the Personal Data only upon documented, legitimate and reasonable instructions from the Data Controller, unless otherwise required to do so by Law to which the Data Processor is subject. In such case, the Data Processor shall inform the Data Controller of such requirement under Law before processing the Personal Data, unless Law prohibits such notification.

  • taking into account the nature of the processing, assist the Data Controller by reasonable and appropriate technical and organizational measures in the Data Controller’s obligation to respond to requests for exercising the Data Subject’s rights laid down in the Law;

  • taking into account the nature of processing and the information available to the Data Processor, reasonably assist the Data Controller, if reasonably requested by the Data Controller, in ensuring compliance with its legal obligations, such as the Data Controller’s data security, data protection impact assessment and prior consulting obligations set out by the Data Protection Legislation;

  • be authorised to use and engage subprocessor(s) from an agreed list. The Data Processor shall be responsible for the subprocessors’ obligations as for its own and shall enter into similar or corresponding contractual obligations with its subprocessors as provided in this clause. The Data Processor shall notify the Data Controller at least two months in advance of new subprocessors who are intended to process Personal Data and shall grant the Data Controller the right to object to the use of a new subprocessor prior to the engagement of the subprocessor. If the Parties are unable to agree on the use of such a new subprocessor, the Data Processor shall be entitled to terminate the Agreement effective as of a reasonable time

  • notwithstanding subsection (e) above, the Parties have explicitly agreed on the use of Salesforce.com EMEA Limited (Salesforce) as subprocessor. Customer gives its express consent to the use of Salesforce as subprocessor hereunder. Deviating from subsection (e) above, the services provided by and the processing of data conducted by Salesforce shall be subject to Salesforce’s Privacy terms [Link] and Data Processing Agreement [Link] and Processor shall only be liable for the acts and omissions of Salesforce to the extent Salesforce has accepted such liability in its terms and conditions;

  • process Personal Data only during the term of this Agreement.

32.6 As it relates to Personal Information under the CCPA, the Flowhaven shall not collect, use, retain, access, share, transfer, or otherwise process Personal Information for any other purposes not directly related to providing such services. Flowhaven will not under any circumstances Sell Personal Information or otherwise process Personal Information for any other purposes not directly related to providing Services.

32.7 The Data Processor is entitled to invoice the costs incurred from assisting the Data Controller in accordance with its price list in force from time to time.

32.8 The processing of Personal Data is also described and itemised in the Agreement as well as hereinunder.

32.9 Flowhaven shall maintain, in accordance with Data Protection Legislation binding on Flowhaven, written records of all categories of processing activities carried out on behalf of the Customer.

32.10 Flowhaven shall, in accordance with Data Protection Legislation, make available to the Customer such information as is reasonably necessary to demonstrate Flowhaven’s compliance with the obligations of data processors under Data Protection Legislation, and allow for and contribute to audits, including inspections, by the Customer or another auditor mandated by the Customer (that shall not however, be a competitor of Flowhaven) for this purpose, and solely with relation to the Customer’s Personal Data, subject to the Customer:

  • giving the Flowhaven reasonable prior notice of such information request, audit and/or inspection being required by the Customer;

  • ensuring that all information obtained or generated by the Customer or its auditor(s) in connection with such information requests, inspections and audits is kept strictly confidential (with the exception of disclosure to the supervisory authority or as otherwise required by Law);

  • ensuring that such audit or inspection is undertaken during the Flowhaven’s normal business hours, with minimal disruption to Flowhaven’s business, the subprocessors’ business and the business of other customers of Flowhaven; and

  • paying Flowhaven’s reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.

32.11 The Data Processor shall implement and maintain appropriate technical and organizational measures for the duration of this Agreement.

32.12 The Data Controller is responsible to ensure that the Data Processor is informed of all issues (including but not limited to risk assessment) related to the Personal Data provided by the Data Controller which may have effect on technical and organizational measures employed under this clause.

32.13 The Data Processor shall ensure that any person acting under the authority of the Data Processor who has access to Personal Data shall not process the Personal Data except upon instructions from the Data Controller, unless such person is required to do so by Law. In the event of a Personal Data Breach, the Data Processor shall without undue delay after becoming aware of the breach, notify the Data Controller in writing and provide the Data Controller with details of the Personal Data Breach.

32.14 The confidentiality obligation, as may be specified in the Agreement, shall also be applied to Personal Data. The Data Processor shall ensure that all of its personnel having access to the Personal Data is bound by a comprehensive confidentiality obligation.

32.15 Where necessary, the Data Processor is entitled to transfer Personal Data to other countries (outside of the EEA) provided that the transfer takes place in accordance with the Data Protection Legislation, e.g. using the EU’s model clauses.

32.16 In case either Party materially breaches the provisions of this clause and fails to remedy the breach, if such breach is remediable, the other Party shall have the right to terminate the Agreement, thirty (30) days from the Party’s notification of the breach to the breaching Party.

32.17 Data Processor shall erase all Personal Data processed under this clause, which it is not mandated or required by Law to retain, after 12 months from the termination, or at any time after the termination upon Data Controller’s written request. The processing of Personal Data after the termination and prior to the erasure shall be limited to mere storage of Personal Data.

32.18 The categories of Data Subjects whose Personal Data will be processed, the processing measures as well as the duration of the Personal Data processing are specified hereinafter.

32.19 The Data Processor undertakes to process Personal Data on behalf of the Data Controller in accordance with the terms and conditions and requirements of this clause in order to provide the Services under the Agreement. Therefore, the subject-matter of the processing is determined on the basis of the Service under the Agreement and the assignment.

32.20 The purpose and the nature of the processing is specified as follows: provision of the Service in accordance with the Agreement.

32.21 The Personal Data and categories of Data Subjects to be processed concern the performance of the Service referred to in the Agreement.

32.22 The categories of Data Subjects whose Personal Data will be processed under the Agreement consist of the following:

  • Clients and other business contacts;

  • Employees and contractors;

  • Subcontractors and agents; and

  • Consultants and partners

32.23 The processing measures concern the following types of Personal Data:

  • Communication data (e.g. telephone numbers, email addresses);

  • Business and personal contact details; and

  • Personal user login details and actions.

32.24 The Personal Data will be processedfor as long as Services are being provided under the Agreement.

32.25 If Flowhaven receives a request from any Data Subject made under Data Protection Legislation relating to Personal Data, Flowhaven will immediately, but no later than two (2) business days after receipt of such request, provide a copy of that request to the Customer. Flowhaven will provide all necessary assistance to Customer to enable it in responding to the request, for example by providing Customer with a copy of or access to all Personal Data held by Flowhaven, or providing for the erasure of the Personal Data must provide necessary assistance within a commercially reasonable period and in compliance with the Data Protection Legislation. If Flowhaven is unable to provide the necessary assistance Flowhaven shall promptly provide a brief explanation of the reasons for the delay or the legal basis for its refusal to do so, and, if applicable, a date certain by which it will be able to do so in writing to Customer. Flowhaven will assist Customer by implementing appropriate technical and organizational measures, to fulfil Customer’s and the Flowhaven’s obligation to respond to Data Subjects’ requests to exercise their rights.

SCHEDULE 2: SOFTWARE AND SUPPORT DESCRIPTION

Modules: The Flowhaven software consists of the following modules:

1.Agreement Management

  • Module to enable licensing agreement management with tie-in to other modules below. The contract status, terms and granted right record details define the external user access rights to the Customer’s Partner Community and the contractual details are used to actively manage the contractual progress

2.Content Management

  • Content Management is a digital asset management solution for sharing digital files internally and externally. Customer is required to provide a third party storage for the digital content that is accessed via the Flowhaven application. For internals the Content Management consists of all digital assets for download and viewing purposes. Internal users can also create and manage the content structure. For externals the content is filtered to match the contractual grant of rights to partner.

3.Design Approvals

  • The design approvals is intended for a design collaboration tool between Customer and its partners. The external licensee users can create and view submissions, which are design concepts and then with the licensor, follow the pre-defined steps for final approval of the licensed product. With the Submission Tool users can create comments, compare previous version, create pinned comments on image and download files. Each submission is linked to a contract and once fully approved the SKU-code of said product is activated for sales reporting and validation.

4.Sales Reporting

  • The partners are required to report sales based on their contract details periodically. The module adds a new Community page for users to submit the sales reports to Customer. For Customer this module grants them clear communication lines for receiving reports for royalty report validation

5.Sales Validation

  • The validation module generates sales report lines based on submitted sales report excel or csv file, which can then be validated against contractual terms and rights. The end result is an invoice request. The amounts of the invoice request are based on the contract records minimum guarantee recoupment and sales calculation logic.

SUPPORT DESCRIPTION Handling of Support Request
Submission:
All communication in relation to Services shall be channelled through phone or email with clear description of the case, issue, problem or defect.

Support email: contact@flowhaven.com
Support contact person: XXX

Support request processing:
The maintenance tasks and readiness are maintained during Suppliers working hours which are 09:00am-5:00pm PST on business days from Monday to Friday.

Classification of Support Requests

The following classification will be used to identify the Support Request based on its severity:

Priority 1: Critical Technical Issue: consists of a loss of core functionality of the Software that severely affects the Customer’s ability to use the Software and there is no applicable workaround solution for the Software to remain operational.

Flowhaven shall confirm receipt of Priority 1 issues within one (1) hour of receipt if received during business hours (or within one (1) hour of the start of the next business day if received during non-business hours). Flowhaven’s technical support team will use best efforts to provide escalated attention in resolving the issue on a 24/7 basis until the issue is resolved. Flowhaven will also provide updates on a daily basis.


Priority 2: Severe Technical Issue: consist of malfunction or functionality error of the software that affects the Customer’s ability to use the Software effectively following its existing workflows, but the Software remains operational with a workaround solution.

Flowhaven shall confirm receipt of Priority 2 issues within one (1) business day and shall use commercially reasonable efforts to provide updates on a weekly basis until the issue is solved or a reasonable workaround is established.


Priority 3: Other issues: consist of technical issues that have minor or have no impact on the Customer’s user of the Software, including cosmetic defects within the user interface.

Flowhaven shall confirm receipt of Priority 3 issues within one (1) business day and shall use commercially reasonable efforts to provide updates on an ongoing basis.

Excluded Services

The following services, without limitation, are excluded from the Service to be supplied under the Agreement (are separately charged if needed)

  • The functioning of any software other than the Software

  • Salesforce.com or other third-party platforms associated with the provided Services is down, malfunctions or system functionality causes data losses for reasons not attributable to Flowhaven

  • Maintenance or support due to the use of the Software for purposes other than that approved by Flowhaven; and

  • Testing and technical productization of new products and related versions, releases, updates or patches of software other than the Software

SCHEDULE 3: SFDC Service Agreement

“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.

“Customer Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.

“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.

“Reseller” means Flowhaven Oy.

“Reseller Application” means Flowhaven end-to-end brand productization platform.

“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.

“SFDC” means salesforce.com EMEA Limited.

“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.

“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).

“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.

1.Use of Platform.

  • Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.

  • If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.

  • Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.

  • You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Customer Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.

  • You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.

  • You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.

2.Third-Party Providers.

Reseller and other third-party providers, some of which may be listed on pages within SFDC’s website and including providers of Third-Party Applications, offer products and services related to the Platform, the SFDC Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers’ use of the Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform and/or the SFDC Service such as by exchanging data with the Platform and/or the SFDC Service or by offering additional functionality within the user interface of the Platform and/or the SFDC Service through use of the Platform and/or SFDC Service's application programming interface. SFDC does not warrant any such third-party providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by SFDC as “certified,” “validated” or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of this SFDC Service Agreement.

3.Integration with Third-Party Applications.

If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.

4.Access by Reseller.

To the extent Reseller serves as the administrator of the Reseller Application for You, You acknowledge that your use of the Reseller Application may be monitored by Reseller and Reseller may access Customer Data submitted to the SFDC Service or Reseller Application. By agreeing to this SFDC Service Agreement, you are consenting to such monitoring and access by Reseller.

5.Processing of Customer Data.

SFDC’s processing of Customer Data is limited to the extent, and in such a manner as is necessary, for the performance of SFDC’s obligations under its agreement with Reseller with regard to provisioning the Platform in connection with the Reseller Application and shall not include processing Customer Data for any other purpose without Your or Reseller’s written instruction as appropriate. For clarity, the following processing is deemed an instruction by Reseller and/or You: (a) processing necessary for the performance of SFDC’s obligations under its agreement with Reseller with regard to provisioning the Platform in connection with the Reseller Application; and (b) processing initiated by Your Users in their use of the Reseller Application.

6.Return of Customer Data.

You have thirty (30) days from the date of termination your Reseller Application subscription term in which to request a copy of Customer Data, which will be made available to You in a .csv format. Any modifications to such Customer Data made by the Reseller Application outside of the Platform (if any) will not be captured in Customer Data as returned and the return of any such modified data shall be the responsibility of Reseller.

7.Proprietary Rights.

Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.

8.Compelled Disclosure.

If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.

9.Suggestions.

You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.

10.Suspension and Termination.

Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.

11.Subscriptions Non-Cancelable.

Subscriptions for the Platform are non-cancelable during a subscription term, unless otherwise specified in Your agreement with Reseller.

12.No Warranty.

SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

13.No Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, COST OF PROCUREMENT OF REPLACEMENT GOODS OR SERVICES, LOST BUSINESS, LOSS OF USE, LOSS OF OR CORRUPTION OF DATA, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.Further Contact.

SFDC may contact You regarding new Platform and SFDC Service features and offerings.

15.Third Party Beneficiary.

SFDC shall be a third party beneficiary to the agreement between You and Reseller associated with Your purchase of the Reseller Application solely as it relates to this SFDC Service Agreement.