Reseller Agreement
Reseller Agreement
Reseller Agreement
This Reseller Agreement (the “Agreement”) is entered into as of January 30, 2009 (the “Effective
Date”) by and between salesforce.org, a California nonprofit public benefit corporation with its
principal place of business at The Landmark @ One Market, Suite 300, San Francisco, California
94105 (“Reseller”), and salesforce.com, inc., a company incorporated in Delaware with its principal
place of business at the Landmark @ One Market, Suite 300, San Francisco, California 94105
(“SFDC”).
1. Definitions
(a) “AppExchange” means the online directory of on-demand applications that integrate with
the Service, located at http://www.salesforce.com/ appexchange/ or at any successor
websites.
(b) “Basic Support” means the customer support service to be offered by SFDC as part of the
Service to Customers to facilitate a Customer’s use of the Service, as set forth in Section 8.
(i) any organization that has received a determination letter from the U.S. Internal
Revenue Service verifying that it qualifies for 501(c)(3) status;
(ii) any charitable organization located outside the United States that has received a
determination in its home jurisdiction substantially equivalent to that described in
subpart (i) above;
(iii) any for-profit corporation that meets comprehensive and transparent social and/or
environmental standards as agreed in writing by Reseller and SFDC from time to time,
including, for example, “B Corporations” and microfinance institutions;
(iv) non-profit or public institutions whose primary purpose is educational, including, for
example, colleges and universities; and
(v) any division or business unit of a for-profit corporation, which division or business unit
would qualify under subpart (iii) above or the primary mission of which is charitable or
philanthropic.
Customers do not include accounts that Reseller determines that it cannot accommodate
(d) “Order Form” means the ordering documents representing the initial purchase of the
Service as well as any subsequent purchases agreed to between SFDC and Reseller in
writing from time to time, in the form of Exhibit C hereto, that are executed hereunder and
deemed incorporated herein from time to time and that specify, among other things, the
number of subscriptions ordered, the subscription term and the applicable fees.
(e) “Service” means the editions specified in Exhibit A hereto of the online, Web-based
application provided by SFDC via http:// www.salesforce.com and/or other designated
websites, including associated offline components but excluding AppExchange applications,
as described by the User Guide. The parties may agree to amend Exhibit A from time to
time in accordance with Section 17(h).
(f) “Support” means the customer support service packages offered by SFDC from time to
time to facilitate a Customer’s use of the Service, and described at
http://www.salesforce.com or other designated websites as provided by SFDC.
(g) “Territory” means North America, Latin America and the Caribbean.
(h) “User Guide” means the online user guide for the Service, accessible via
http://www.salesforce.com, as updated from time to time.
(b) No Sub-Distributors. Reseller shall not authorize any other company or entity to resell the
Service (for example, as a sub-distributor) without SFDC’s prior written consent.
(c) Customer Agreements. Reseller must ensure that each Customer has entered into a
written agreement with Reseller containing the end user subscription terms set forth in
Exhibit B, before an order for that Customer is submitted to SFDC.
(d) One Edition per Customer Contract. Reseller shall not permit any Customer to subscribe
to more than one edition of the Service (for example, Professional Edition, Team Edition or
Enterprise Edition) under a single contract or in a single “org.”
(e) Internal Use Subscription. During the term of this Agreement, Reseller shall purchase and
maintain subscriptions for the Enterprise Edition of the Service for Reseller’s own internal
use in a quantity at least equal to the total number of Reseller’s SFDC-dedicated employees
targeted for that year. Pricing for such internal use licenses shall be mutually agreed upon in
writing in an applicable Order Form. This Agreement does not otherwise grant Reseller any
internal use subscription for the Service or Support.
(a) Authorization to Demonstrate and Market. SFDC hereby grants to Reseller the nonexclusive,
nontransferable, nonsublicensable right to demonstrate and market the Service and Basic
Support to Customers in the Territory during the term of this Agreement.
(b) Press Releases. Each party may issue a press release announcing the relationship
contemplated under this Agreement, provided each such press release shall be subject to
the other party’s prior written approval, not to be unreasonably withheld or delayed.
(c) Promotion of Service. Reseller shall propose a SFDC-based solution to all of its
Customers that lack an existing CRM solution.
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(d) Compliance with Laws and Ethical and Brand Representation Standards. Reseller shall
comply with all applicable laws and regulations in its marketing activities hereunder and
shall not engage in any deceptive, misleading, illegal or unethical marketing activities that
may be detrimental to SFDC or the Service. Additionally, Reseller shall present SFDC and
the Service to Customers and the public and perform its obligations hereunder in a manner
that in SFDC’s judgment reflects well upon SFDC and its brands. Reseller shall comply in all
respects with the U.S. Foreign Corrupt Practices Act (the “Act”) in its activities under this
Agreement and shall promptly inform SFDC in writing upon becoming aware of any
violations of the Act in connection with this Agreement. Without limiting the foregoing,
Reseller warrants that it has not offered or paid, and will not offer or pay, any money or
anything else of value, to any person for the purpose of securing any improper advantage in
violation of the Act or other applicable law.
(e) Representations to Customers. Reseller shall not make any representations, warranties
or guarantees to Customer concerning the Service or Support that are inconsistent with or in
addition to those made in this Agreement, in the User Guide, or in SFDC’s published
marketing materials.
(f) Trademark Usage Guidelines. Reseller shall comply at all times with SFDC’s Trademark
usage guidelines as published by SFDC from time to time.
(g) Branding Elements; Co-Branding. Reseller shall not alter any SFDC branding elements in
the Service or any marketing materials. Reseller shall not co-brand the Service or Support
without SFDC’s prior written consent, provided, however, Reseller may co-brand
Reseller-developed customizations to the Service. All such Reseller-developed
customizations shall be subject to SFDC’s approval before they are made available to
customers or prospects. Reseller shall not distribute any marketing or other materials
containing SFDC branding elements, other than materials produced by SFDC, without
SFDC’s prior written approval of such materials.
4. Activation of the Service. Upon receipt of an order for the Service and/or Support from a
Customer, Reseller shall submit to SFDC (i) a completed Order Form, in the form attached as
Exhibit C or in another form as agreed by SFDC and Reseller, signed by Reseller, (ii) a Reseller
purchase order, and (iii) a copy of the related ordering document, signed by the Customer.
SFDC will use commercially reasonable efforts to activate all SFDC approved orders received
by 5:00 p.m. San Francisco time on an SFDC business day, by 5:00 p.m. San Francisco time on
the second SFDC business day thereafter.
5. User Subscription Duration and Renewal. User subscriptions sold by Reseller under new
contracts with Customers must be for a minimum of one year. Add-on User subscriptions sold
by Reseller under an existing contract with a Customer shall co-terminate with the existing User
subscriptions under that contract. All Customer contracts shall provide for continuing automatic
renewal of User subscriptions for a period of at least one year, except as otherwise approved in
writing by SFDC in each instance. Reseller will clearly indicate on each Order Form submitted to
SFDC pursuant to Section 4 above, via check box or other explicit manner, whether the order is
subject to automatic renewal. SFDC will use commercially reasonable efforts to send notices of
pending contract expirations to Reseller no less than 60 days in advance of the respective
contract expiration dates. If a Customer wishes to cancel automatic renewal of a User
subscription, Reseller shall notify so SFDC no later than 30 days before the end date of the
User subscription.
6. Fees.
(a) No SFDC Fees to Reseller. SFDC shall not charge any fees to Reseller for subscriptions
ordered and Service provided pursuant to this Agreement.
(b) Reseller’s Fees to Customer. Reseller is free to charge Customer whatever fees it deems
appropriate for the Service. Reseller’s subscription fees for the Service shall include Basic
Support. Reseller shall not unbundle Basic Support from the Service or otherwise charge
Customers for Basic Support.
(c) Suggested List Price. SFDC may, in its discretion, publish a “Suggested List Price”, or
similar price description, which lists the prices that it suggests are appropriate for sale of the
Service and/or Support to end users. Reseller is under no obligation to charge the
Suggested List Prices to a Customer.
(d) Taxes. Reseller is responsible for paying all direct or indirect local, state, federal or foreign
taxes, levies, duties or similar governmental assessments of any nature, including
value-added, or use taxes associated with its orders or sales pursuant to this Agreement,
excluding taxes based on SFDC’s net income or property
(a) Reseller Responsible for Invoicing Customer. Reseller is solely responsible for collecting
all fees due from Customers for the Service, and for Support as applicable, and shall invoice
Customer directly for such fees.
8. Support. If Reseller is contacted by a User seeking support assistance for the Service, Reseller
shall immediately refer such User to SFDC at support@salesforce.com. Reseller acknowledges
that its immediate referral of Customer support cases to SFDC is critical to SFDC’s ability to
timely provide Support to Users.
(a) Basic Support. SFDC shall provide all Basic Support to Customers and their Users as set
forth at http://www.salesforce.com/services-training/ customer-support/basic/.
(b) Upgraded Support Packages. Reseller may refer Customers to SFDC for SFDC’s
upgraded (i.e., other than Basic Support) Support offerings. Reseller shall not offer any such
upgraded SFDC Support packages to Customers without SFDC’s prior written consent.
9. Professional Services.
Reseller will ensure that such consultants have the experience, skills and knowledge
10. Records
(a) Recordkeeping. Reseller shall maintain adequate books and records in connection with its
activities hereunder. Such records shall include invoicing, payment and other financial
records associated with each transaction. In addition, Customer shall maintain records
supporting Customer’s qualifications as a Customer. SFDC may audit the relevant books
and records of Reseller to ensure compliance with the terms of this Agreement upon
reasonable notice to Reseller. Any such audit shall be conducted during regular business
hours at Reseller’s offices and shall not unreasonably interfere with Reseller’s business
activities. Audits shall be performed no more than twice during any twelve (12) month
period.
(b) Notice of Any Claim. Reseller will notify SFDC promptly in writing of any claim or
proceeding involving the Service or Support that is brought to Reseller’s attention.
(a) Term. This Agreement shall begin on the Effective Date and continue for five years, after which
point it shall renew automatically for additional one year terms, unless either Party gives notice
within thirty (30) days of the renewal date of an intention not to renew.
(b) Termination without Cause. Either party may terminate this Agreement without cause at
any time, effective upon six months’ written notice to the other party.
(c) Termination for Cause. Either party may terminate this Agreement and/or any Order Form
hereunder (i) upon 30 days written notice of a material breach by the other party, unless the
other party has cured such breach within the 30-day period, or (ii) immediately upon written
notice to the other if the other party (or, in the case of an Order Form, if the Customer)
ceases to conduct its business in the ordinary course or becomes the subject of a
bankruptcy, insolvency or similar proceeding that is not dismissed within 30 days of filing.
(d) Effects of Expiration or Termination. Expiration or termination of this Agreement shall not
relieve the parties of any rights or obligations accruing prior to such expiration or
termination. Upon any expiration or termination (i) all of Reseller’s rights to resell and market
the Service shall cease; (ii) Reseller shall immediately cease all representations that it is an
SFDC Reseller, and (iii) each party shall return to the other all Confidential Information of the
expiration, each Order Form (including all User subscriptions, SFDC obligations to provide
the Service and/or Support, and any Reseller obligations thereunder) outstanding at the time
of such termination or expiration shall remain in effect for the duration of its term and shall
continue to be governed by this Agreement as if it had not been terminated (“Legacy
Orders”), except to the extent of any material breach by the applicable Customer of its
payment obligations for the Service or the End User Subscription Terms in Exhibit B, at
SFDC’s sole option it may immediately terminate such Customer or Legacy Order.
Additionally, SFDC shall have the option of assuming the Customer relationship and at its
option renewing any expiring Legacy Orders directly with a Customer without payment to
Reseller.
(e) Survival. The obligations of the parties set forth in Sections 1, 10, 11 and 13 - 17 shall
survive any expiration or termination of this Agreement.
12. Warranties
(a) SFDC. SFDC warrants solely for the benefit of Reseller that the Service will materially
conform to the User Guide. This warranty does not apply to any damage resulting from
unauthorized use or negligence on the part of Reseller. THIS SECTION SETS FORTH
SFDC’S SOLE OBLIGATION, AND RESELLER’S SOLE AND EXCLUSIVE REMEDY, FOR
A BREACH OF THE WARRANTY IN THIS SECTION.
13. Indemnification
(a) Indemnification by SFDC. SFDC shall, at its own expense, defend Reseller and its
affiliates, directors, officers and employees (“Reseller Indemnified Parties”) against any
claim, demand, suit or action (a “Claim”), and shall indemnify and hold harmless the
Reseller Indemnified Parties from and against any damages, costs (including but not limited
to reasonable attorney fees and costs) or amounts agreed to in a monetary settlement,
arising out of or in connection with such Claim, to the extent the Claim is made or brought by
or on behalf of a third party alleging that the Service infringes any copyright or patent, or
misappropriates any trade secret, of such third party. SFDC has no obligation under this
section or otherwise to the extent any claims are based on (i) any use of the Service not
contemplated hereunder or in the User Guide, (ii) any use of the Service in combination with
other products not contemplated hereunder or in the User Guide, if the infringement is
caused by such combination, (iii) use or modification of the Service by any person other
than as permitted hereunder, or (iv) any marketing claims or other actions by Reseller not in
compliance with the terms of this Agreement.
THIS SUBSECTION (A) STATES SFDC’S ENTIRE LIABILITY AND RESELLER’S SOLE
(b) Indemnification by Reseller. Reseller agrees to enforce the terms of its resale agreements
with Customer as required by this Agreement and to notify SFDC of any known breach of
such terms. Reseller shall, at its own expense, defend SFDC and its affiliates, directors,
officers and employees (“SFDC Indemnified Parties”) against any Claim, and shall indemnify
and hold harmless the SFDC Indemnified Parties from and against any damages, costs
(including but not limited to reasonable attorney fees and costs) or amounts agreed to in a
monetary settlement, arising out of or in connection with such Claim, to the extent the Claim
is made or brought by or on behalf of (i) a Customer in connection with services resold by
Reseller hereunder, or (ii) a third party other than a Customer and is based upon the
negligence or willful misconduct of Reseller or any breach by Reseller of this Agreement.
(c) Mutual Obligations for Indemnification. Each party’s obligations in this section are
conditioned on the other party providing the following: (i) prompt notice of any claim for
which indemnification is sought, (ii) sole control of the defense and settlement of such
claims, and (iii) reasonable assistance and cooperation at the expense of the indemnifying
party; provided, however, that the indemnifying party may not enter into any settlement
imposing any liability or obligation on the indemnified party without the indemnified party’s
consent.
(d) Equitable Relief. Reseller acknowledges that any breach of its obligations with respect to
the proprietary rights of SFDC may cause SFDC irreparable injury for which there are no
adequate remedies at law, in which case SFDC shall be entitled to equitable relief in
addition to all other remedies available to it.
15. Confidentiality
(c) Compelled Disclosure. Notwithstanding the foregoing, Receiving Party shall not be in
violation of this section if it discloses Confidential Information in response to a valid order by
a court or other governmental entity, provided that Receiving Party provides Disclosing Party
as prompt notice as practicable of such impending disclosure and reasonable assistance (at
Disclosing Party’s expense) to permit Disclosing Party to contest the order or seek
confidential treatment.
(a) Ownership. SFDC retains all right, title and interest in and to the Service, any modifications
thereto and all material provided by SFDC to Reseller, Customer and Users. SFDC reserves
all rights not expressly granted to Reseller by this Agreement.
(ii) Restrictions. In no event shall either party use a Trademark of the other party with any
disparaging, unlawful or derogatory material. Neither party shall use any Trademark in
a manner that may diminish or otherwise damage the other party’s goodwill in that
Trademark. Each party shall promptly terminate any Trademark use upon notice by the
other party, or upon termination or expiration of this Agreement. Nothing contained in
this Agreement shall be deemed to grant any party any right, goodwill, title or interest in
the Trademarks of the other party. Neither party shall register any Trademark (or any
trademarks confusingly similar to any Trademark) of the other party and shall not
challenge, directly or indirectly, the same.
(iii) Assistance. Each party shall, upon reasonable request by the other party, provide any
necessary assistance to perfect or enforce intellectual property protection for the
Trademarks of the other party. Any expenses associated with such a request shall be
paid by the party requesting assistance.
(c) Suggestions. Reseller agrees that SFDC shall have a royalty-free, worldwide, perpetual
license to use or incorporate into the Service any suggestions, ideas, enhancement
requests, feedback, recommendations or other information provided by Reseller relating to
the Service.
17. General
(a) Assignment. Neither party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement, whether by operation of law or otherwise, to any third party
without the other party’s prior written consent. This Agreement will bind and inure to the benefit
of the parties’ successors and permitted assignees.
(b) Force Majeure. If the performance of this Agreement or any obligation (other than payment
obligations), is prevented or restricted by any condition beyond the reasonable control of the
affected party, the party so affected, upon giving prompt notice to the other party, will be
excused from such performance to the extent of such condition.
(c) Governing Law; Venue. This Agreement shall be governed exclusively by the internal laws
of the State of California, without regard to its conflicts of laws rules. The state and federal
courts located in San Francisco County, California shall have exclusive jurisdiction to
adjudicate any dispute arising out of or relating to this Agreement. Each party hereby
consents to the exclusive jurisdiction of such courts. Each party also hereby waives any
right to jury trial in connection with any action or litigation in any way arising out of or related
to this Agreement.
(d) Independent Contractors. The parties are independent contractors, and no agency,
partnership, joint venture or employee-employer relationship is created by this Agreement.
(e) Notices. All required or permitted notices and consents must be in writing and sent to the
addressee at the address set forth above, or such address as the parties may specify in
writing from time to time, and must be delivered by personal delivery, facsimile or recognized
overnight courier. Notices shall be deemed given upon delivery.
(f) Severability. If any provision of this Agreement is adjudged invalid or unenforceable, the
remaining provisions will continue in full force and effect, and the parties agree to replace
the affected provision with a valid provision that most closely approximates its intent and
economic effect.
(g) No Waiver. No failure or delay by either party in exercising any right under this Agreement
shall constitute a waiver of that right. Other than as expressly stated herein, the remedies
provided herein are in addition to, and not exclusive of, any other remedies of a party at law
or in equity.
(h) Amendment. This Agreement may not be modified or amended except in a writing signed
by both parties.
(i) Complete Agreement. This Agreement reflects the complete and final agreement between
the parties, and supersedes, integrates and replaces all prior and contemporaneous
communications, negotiations and understandings, with respect to the subject matter hereof.
(j) Conflicts. In the event of any conflict between the terms of this Agreement and the attached
Exhibits, the terms of the Exhibits shall control.
(k) Counterparts. This Agreement may be signed in counterparts, which together shall
constitute one agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
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