Heroku Partner Program Agreement

BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE SIGNUP PROCESS, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT, THE PROGRAM POLICIES, AND PROGRAM SITE, ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THIS AGREEMENT (COLLECTIVELY, THE "AGREEMENT"). THE AGREEMENT SHALL GOVERN YOUR ENROLLMENT AND PARTICIPATION IN SALESFORCE.COMS HEROKU PARTNER PROGRAM (THE "PROGRAM" AS FURTHER DEFINED BELOW). YOU ALSO REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT. YOU MUST ACCEPT THIS AGREEMENT BEFORE YOU CAN PARTICIPATE IN THE PROGRAM.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU," OR "YOUR," SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE "I ACCEPT" BUTTON AND MAY NOT ENROLL OR PARTICIPATE IN THE PROGRAM. THE "EFFECTIVE DATE" OF THIS AGREEMENT SHALL BE THE DATE OF YOUR ACCEPTANCE OF THE AGREEMENT.

YOU MAY NOT ACCEPT THIS AGREEMENT IF YOU ARE OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT.

This Agreement was last updated on June 10, 2012.

1. Definitions

Application means a Web-based, on-demand software application that runs on the Heroku Services pursuant to a separate agreement between You and Us.

End User means a third party that is licensed to use the Heroku Services for its own business operations.

Heroku Services means the Heroku cloud computing platform, the Heroku API, and any other software or services offered by Heroku in connection to any of those, excluding third-party applications.

Listing means a listing for Your services or Application offered in connection with the Heroku Services that You submit to Us for display on the Program Site.

Membership Qualifications means the requirements applicable to the designated Program Level of partnership in a Program Type.

Partner Lead Form means the web form You must complete before enrolling into the Partner Program, available on the Program Site. Such web form requires You to indicate, among other things, the Program Type You wish to be in enrolled in and other relevant information regarding Your company.

Partner Portal means the Heroku website accessible through the Program Site that enables You to facilitate the partner relationship with Heroku, explore partner resources, and view upcoming partner events.

Partner User shall mean Your employee (or contractor that has signed a nondisclosure agreement protecting the rights of third parties, including Our rights hereunder) who is authorized by You to use the Partner Portal, or the Heroku Services, and who has been supplied user identifications and passwords by You (or by Us at Your request).

Program means, collectively, the Program Types and Program Levels identified in the Program Policies. The Program shall expressly exclude reseller relationships (including, without limitation, reseller and referral relationships), which are governed by separate agreements and application process with Us.

Program Benefits means the materials and/or services that may be provided to You under this Agreement, depending on your Program Type and Program Level, some of which may be subject to Your payment of additional fees.

Program Level means the level of Your participation in a Program Type. Program Levels and Membership Qualifications are described more fully in the Program Policies and are subject to change from time to time.

Program Policies means the aggregate of policies and documentation describing the Program, Program Types, Program Benefits, and other policies governing your participation in the Program, as set forth in this Agreement and on the Program Site.

Program Site means the Program website located at partners.heroku.com or such other URL designated by Us from time to time.

Program Type means a sub-category of the Program that has a particular scope and particular set of Program Benefits, as set forth in this Agreement and the Program Policies. Program Types may have multiple Program Levels.

We, Us or Our means the salesforce.com company described in Section 19 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).

You or Your means the company or other legal entity for which you are accepting this Agreement.

2. Program Overview

2.1 Enrollment. Your enrollment in the Program requires Your acceptance of this Agreement together with a completed Partner Lead Form prepared and submitted by You to Us. Upon Your submission of such Partner Lead Form, Your acceptance of this Agreement, and Our acceptance of Your Partner Lead Form, You will be enrolled in the registered Program Level of the Program Type for which You indicated Your interest in the Partner Lead Form. At such time, You will also be provided with access rights to the Partner Portal. We reserve the right to require Your submission to Us of additional information from time to time.

2.2 Membership Qualifications and Program Benefits. By enrolling in the Program You certify that You meet the Membership Qualifications for the registered Program Level of the Program Type. You further represent that You will continue to meet and comply with such requirements for the duration of Your enrollment therein. Notwithstanding anything to the contrary in this Agreement, if at any time We determine You are enrolled into a Program Type and/or Program Level for which You do not meet the Membership Qualifications, We may, at our sole discretion, reclassify Your membership to a Program Type and Program Level which You do qualify for, effective immediately upon Our written notification to You of such reclassification. You also agree to notify Us in writing in the event You no longer meet the Membership Qualifications for a Program Type or Program Level designation in which You are enrolled. The Program Policies, including Program Benefits and Membership Qualifications described therein, are subject to change in Our sole discretion; however, Program Benefits will not be materially decreased, and Membership Qualifications shall not be materially altered, for You during a term for which You have paid fees for the applicable Program Type. You are responsible for reviewing the Program Policies regularly.

2.3 Fees. There are currently no fees required for Your enrollment into the Program, however, certain Program Levels and Program Benefits may be subject to fees as described in the Program Policies. Your continued membership in the Program is at all times subject to Your timely payment of any applicable fees for Your Program Type and Program Level. Fees are payable annually in advance, within 30 days of the invoice date, unless stated otherwise in the Program Policies. Fees are subject to change at Our discretion. Payment obligations are non-cancelable and fees paid are non-refundable.

2.4 Partner Subsidiaries. Each wholly and majority owned subsidiary that desires to be included as a member in the Program must complete its own Partner Lead Form for membership and separately agree to this Agreement.

2.5 Opt-in to Marketing. Your participation in the Program will serve as an opt-in to receive Our marketing communications that We may deem relevant to Our partners. You will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any persons or Partner Users who are signed up to the Program on Your behalf. You may elect to opt-out from receiving Our marketing materials by contacting Us directly.

3. Compliance with Applicable Laws

3.1 Your Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on Your behalf comply, with all applicable foreign and domestic laws, governmental regulations, ordinances, and judicial administrative orders, including, but not limited to, trademark and copyright laws, ICANN policies and procedures governing domain names, the United States Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1, et seq. (the FCPA) and applicable export control laws or regulations (collectively Applicable Laws) and shall not engage in any deceptive, misleading, illegal or unethical marketing or sales activities, or activities that otherwise may be detrimental to Us, Our customers, the Heroku Services, or to the public. You shall promptly inform Us in writing upon becoming aware of any violations of Applicable Laws in connection with this Agreement. You agree that You, Your sales representatives, and anyone working on Our behalf may be subject to compliance training as determined by Us.

3.2 Disclosure of Third Parties. To enable Us to comply with Applicable Laws, You must notify Our Legal Department (legalcompliance@salesforce.com) in advance if You plan to use any third party subcontractor, consultant, agent, or other intermediary to assist You in marketing Our products and services under this Agreement, We will have the authority to accept or reject any proposed third party.

3.3 Periodic Certification and Agreement to Report Violations. You agree that You will periodically, at Our request, certify that You have not, and to Your knowledge no other person, including but not limited to every owner, director, employee, representative and agent of You has made, offered to make, agreed to make, or authorized any payment, loan, donation or gift of money or anything else of value, directly or indirectly, to or for the benefit of any Government Official, to obtain or retain business, or secure any improper advantage. You further agree that should You learn of information regarding any such payment or offer in connection with Our business, You will immediately advise Our Legal Department (legalcompliance@salesforce.com) of such knowledge or suspicion.

3.4 Our Compliance. We shall comply with all Applicable Laws in performing Our obligations hereunder.

4. Heroku Services Competence

Your sales representatives must be reasonably capable of effectively delivering Our value proposition and must be generally knowledgeable about the Heroku Services and its interface, advantages and high-level functionality. You agree to use reasonable efforts to advise Us of any demonstrations required to market the Heroku Services to prospective customers, especially those with a sales force or customer service group of greater than twenty (20) people.

5. Licenses

5.1 Our Licenses to You. As a member of the Program You are entitled to the following licenses and/or access and use rights as set forth below, subject to your classification in an applicable Program Type and Program Level where such rights apply.

A. Services Subscriptions. This Agreement does not entitle You to receive access to the Heroku Services. Any such access shall be governed by a separate agreement with Us.

B. Marketing Services. If applicable to your Program Type, We grant you a non-exclusive, nontransferable, limited license to use those portions of the Our marketing programs, marketing materials and tools, as further described in the Program Policies (Marketing Services) solely for the purpose of creating, executing, and monitoring marketing campaigns related to Our products and services. Your use of the Marketing Services shall be subject to this Agreement and must comply with Our current branding guidelines, and partner press release guidelines. We may change the usage, branding and press release guidelines, and location thereof at any time, and, upon reasonable notice from Us, you shall promptly modify Your use of the Marketing Services to conform to any such changed guidelines. You shall cooperate with Us to allow for review of Your use of the Marketing Services and compliance with Our quality standards. If We, in Our sole discretion, determine that Your use of the Marketing Services is not in compliance with this Agreement, You shall promptly modify or discontinue Your use as directed by Us. In the event that Marketing Services include payments to You, then You shall maintain adequate books and records regarding the basis for such payments and shall provide Us copies of such records upon request. For clarity, You may not issue a press release regarding the relationship under this Agreement without Our prior written approval.

5.2 Your License to Us. You grant Us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Heroku Services any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the Heroku Services. You also grant Us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to display Your Listing on the Program Site.

5.3 Trademark Cross License. Subject to Your Program Type and Program Level, We grant You a nonexclusive, nontransferable, non-sublicenseable, royalty-free license during the Term, to use solely in connection with Your rights, duties, and obligations under this Agreement the mark HEROKU, and such marks identified publicly by Us as available for use by Partners (see Trademark Usage Guidelines, which may be found at https:/www.heroku.com/policy/trademark or such other URL Heroku may provide from time to time) in any jurisdiction in which We have acquired and/or acquire rights. This License does not grant rights to use any of Our trademarks not identified herein. You grant Us a nonexclusive, nontransferable, non-sublicenseable, royalty-free license during the Term to use solely in connection with Our rights, duties, and obligations under this Agreement Your marks, including Your company name and the associated logos in any jurisdiction in which You have acquired and/or acquire rights. Any use of the marks identified in this section (Marks) shall be in accordance with the granting party's reasonable trademark usage policies, with proper markings and legends, and subject to granting party's prior written approval. Neither party shall make any express or implied statement or suggestion, or use the other party's Marks in any manner, that dilutes, tarnishes, degrades, disparages, or otherwise reflects adversely on the other party or its business, products, or services. Each party shall cease, or adjust the manner of, its use of any of its Marks of the other party at the request of the other party in its sole discretion. The granting party may withdraw any approval of any use of its Marks at any time in its sole discretion.

6. Intellectual Property Ownership

6.1 Technology. Subject to the limited licenses set forth in this Agreement, nothing in this Agreement transfers or assigns to Us any of Your intellectual property rights in Your Applications or Your other technology, products, or services (including, without limitation, any source code developed by you using the Heroku Services), and nothing in this Agreement transfers or assigns to You any of Our intellectual property rights in the Heroku Services, the Marketing Services, the Partner Portal, the Program Site, or Our other technology, products, or services (Our Property).

6.2 Trademarks. Our marks, including those identified as the Marks above, in Our Trademark List (http://www.salesforce.com/assets/pdf/misc/salesforceTMlist.pdf), and otherwise used on Our websites, are Our trademarks or service marks and may not be used in any manner except as expressly permitted herein or with Our prior written consent. You may not publish any online advertisement which includes any of Our trademarks, including those identified herein, without prior review and approval by Us. You may forward requests for review and approval to trademarks@salesforce.com.

6.3 Competitive Applications. Subject to Our and Your respective rights and obligations under this Agreement, We acknowledge that You and/or other parties may develop and publish applications that are similar to or otherwise compete with Our applications, products and services, and You acknowledge that We, and/or other parties, may develop and publish applications that are similar to or otherwise compete with Your Applications, products or services.

7. Restrictions

7.1 Restrictions on Use of the Heroku Services and Partner Portal. You are responsible for all activities that occur in Partner User accounts, and for Partner Users compliance with this Agreement. In no event shall You (i) license, sublicense, sell, resell, transfer, assign, distribute, or (except as provided in this Agreement) otherwise commercially exploit or make available to any third party the Heroku Services or Partner Portal in any way; (ii) modify or make derivative works based upon the Heroku Services or Partner Portal; (iii) create Internet "links" to the Heroku Services or Partner Portal or "frame" or "mirror" it on any other server, wireless, or Internet-based device; (iv) send or store any virus, worm, time bomb, Trojan horse, or other harmful or malicious code, file, script, agent, or programs; (v) interfere with, or disrupt the integrity or performance of the Heroku Services, the Partner Portal, or the data contained therein; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material; or (vii) reverse engineer or access the Heroku Services or Partner Portal for the purpose of (a) building a competitive product or service, (b) building a product using similar ideas, features, functions, or graphics of the Heroku Services or Partner Portal, or (c) copying any ideas, features, functions or graphics of the Heroku Services or Partner Portal. Partner User subscriptions cannot be shared or used by more than one individual user but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer need to use the Heroku Services under this Agreement.

7.2 Additional Restrictions. In addition to any other restrictions set forth in this Agreement, Your use of any Program Benefits, including Our Property provided to You hereunder, is further subject to the restrictions set forth below.

You may not: - Remove or modify any program markings or any notice of Our, or Our licensors, proprietary rights; - Make the Heroku Services, any materials delivered hereunder, or any materials resulting from the Heroku Services, available in any manner to any third party for use in the third partys business operations, other than as expressly permitted herein or in the Program Policies for your Program Type; - Use Our Property in a manner that misrepresents Your relationship with Us or is otherwise misleading or that reflects negatively on Us or may harm Our rights therein; - Modify, in any way, any of Our trademarks and/or associated logos (e.g., by inserting Your company or brand name inside Our proprietary logos or co-branding products or services by blending Our corporate logo with Your corporate logo without Our permission); - Use or duplicate Our Property provided to You for any purpose, other than as specified herein or in the Program Policies, or make Our Property available to unauthorized third parties; - Use Our Property for Your own internal business operations or use or make Our Property available in any manner to any third party for use in the third partys business operations or for any other commercial or production use, other than as expressly permitted herein or in the Program Policies applicable to your Program Type and Program Level; - Create any content or otherwise transmit any information or material that: (1) is false or misleading; (2) is harassing or invades another's privacy, harms minors in any way, or promotes bigotry, racism, hatred, or harm against any group; (3) is obscene; (4) infringes another's rights, including but not limited to intellectual property rights; (5) constitutes unsolicited commercial email or spam; or (6) violates any applicable laws or regulations (You, and not Us, are responsible for all content and other materials that you upload, post, email or otherwise transmit in using Our Property); or - Misrepresent to Us, or third parties, Your capabilities or expertise, or the functionality of Your Applications, including, without limitation, the content in Your Listing.

8. Warranties; Disclaimers and Remedies

WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES REGARDING THE HEROKU SERVICES AND PARTNER PORTAL, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY OTHER INDIVIDUAL OR ENTITY AFILIATED WITH YOU FOR ANY CLAIM, LOSS, OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE HEROKU SERVICES.

WE FURTHER DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE HEROKU SERVICES, MARKETING SERVICES, PROGRAM BENEFITS, PROGRAM SITE, OR THIRD PARTY SERVICES AND PRODUCTS, INCLUDING WITH RESPECT TO THE PERFORMANCE, FUNCTIONALITY, QUALITY, BENEFITS, OR AVAILABILITY OF ALL OF THE FOREGOING.

9. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between You and Us, notwithstanding the term partner. Nothing on any purchase order or preprinted form shall add to or vary the terms of this Agreement. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. There are no third-party beneficiaries to this Agreement. You shall not make any proposals, promises, warranties, guarantees, or representations on Our behalf or in Our name.

10. Term, Termination & Renewal

10.1 Term. This Agreement shall remain in effect for one (1) year (the Initial Term) from the date of Your acceptance of this Agreement (Effective Date). On the one-year anniversary of the Effective Date, and each one-year anniversary of such date thereafter, this Agreement shall automatically renew for an additional term of one (1) year (each, a Renewal Term), subject to any applicable fees in effect at such time, unless either party gives the other party written notice at least 30 days prior to the renewal date of its intent not to renew. The Initial Term and any Renewal Terms are referred to collectively herein as the Term.

10.2 Termination for Cause. Either party may immediately terminate this Agreement upon written notice to the other party if (a) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (b) the other party is acquired by or becomes the terminating partys competitor, (c) the other party breaches its confidentiality obligations under this Agreement or infringes or misappropriates the terminating partys intellectual property rights, (d) the terminating party determines, based on one or more customer or prospect complaints, that the other partys actions or statements creates a significant risk of harm to the terminating partys reputation or customer relationships, (e) the other party has committed fraud or misrepresentation with respect to entering into and/or the performance of this Agreement, (f) a party learns of circumstances that give it reason to believe that the other party has engaged in illegal conduct or unethical business practices in connection with performance of this Agreement, (g) the other party, or any of its owners or employees responsible for providing services under this Agreement, have become the target of an investigation or prosecution by any governmental authority for alleged corruption, or (h) the other party has violated Section 3 herein (Compliance with Applicable Laws) including violating Our rights under trademark and copyright laws and/or ICANN policies and procedures governing domain names. Subject to the foregoing, either party may terminate this Agreement upon 30 days written notice to the other party of such other partys material breach, if the breach is not cured during that period. We may suspend your Program Type Program Benefits during any period in which You are in breach of the Agreement. Termination of this Agreement for cause shall be in addition to, and not in lieu of, either partys other legal rights and remedies.

10.3 Termination for Convenience. Either Party may terminate this Agreement for convenience upon 30 days written notice to the other party, provided that We may not terminate for convenience with respect to a Term for which You have already paid any applicable fees. In addition, we may de-list Your Listing from the Program Site in Our sole and absolute discretion.

10.4 Effect of Termination. Upon termination or expiration of this Agreement, You shall cease to be a member of the Program and all of Your rights to receive the Program Benefits, detailed in this Agreement and the Program Policies, and to use Our Property, shall cease. Provisions that survive termination or expiration include those relating to limitation of liability, payment, and others which by their nature are intended to survive.

11. Confidentiality

11.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include, without limitation, the Heroku Services, materials in the Partner Portal, and Our Customer Data. Your Confidential Information includes, but is not limited to, Your business and marketing plans, technology and technical information, products designs, and business processes. Confidential Information of each party shall include the terms and conditions of this Agreement and discussions regarding the partner relationship. However, Confidential Information (except for Our Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without breach of an obligations owed to the Disclosing Party.

11.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

11.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Partys Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

11.4 Our Customer Data. As used herein, Our Customer Data means electronic data or information submitted by Our customers into Our system. To the extent Your Applications transmit Our Customer Data outside Our system, You represent and warrant that You have notified all users who have access to Our Customer Data through Your Applications, or will notify them prior to their use of Your Applications, that their data will be transmitted outside Our system and, to that extent, We are not responsible for the privacy, security, or integrity of such data. You further represent and warrant that, to the extent Your Applications store, process, or transmit Our Customer Data, neither You nor Your Applications will, without appropriate prior user consent, or except to the extent required by applicable law, (1) modify the content of Our Customer Data in a manner that adversely affects the integrity of Our Customer Data, (2) disclose Our Customer Data to any third party, or (3) use Our Customer Data for any purpose other than providing Your Application functionality to users of Your Applications. You shall also maintain and handle all of Our Customer Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable privacy laws and regulations. A modification or disclosure of Our Customer Data does not violate either of the two preceding sentences to the extent it results from an activity of the applicable customer using Your Application and a reasonable customer would expect that modification or disclosure of its data to occur as a result of that activity.

12. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO $50,000. NOTWITHSTANDING THE FOREGOING, THE ABOVE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO EITHER PARTYS INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 HEREUNDER.

13. Indemnification

13.1 Indemnification by Us. We shall defend, indemnify, and hold you harmless against any loss, damage, or costs (including reasonable attorneys fees) incurred in connection with claims, demands, suits, or proceedings (Claims) made or brought against you by a third party alleging that the use of the Heroku Services or Partner Portal, as contemplated hereunder infringes, misappropriates, or violates any intellectual property rights of a third party; provided, that You (a) promptly give written notice of the Claim to Us, (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle or defend any Claim unless it unconditionally releases You of all liability), and (c) provide to Us, at Our cost, all reasonable assistance.

13.2 Indemnification by You. Subject to this Agreement, You shall defend, indemnify, and hold Us harmless against any loss, damage, or costs (including reasonable attorneys fees) incurred in connection with Claims made or brought against Us by a third party alleging (i) that any data entered by You into the Heroku Services or Partner Portal, or Your use of the Heroku Services or Partner Portal in violation of this Agreement, or your products or services, including Your Listing, infringes, misappropriates, or violates any intellectual property rights of, or has otherwise violated applicable law with respect to, a third party, (ii) Your breach of any representation, warranty, or agreement relating to Your products and services, including Your Application, Your services, or Your Listing, and (iii) Your breach of this Agreement; provided, that We (a) promptly give You written notice of the Claim, (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle or defend any Claim unless it unconditionally releases Us of all liability), and (c) provide to You, at Your cost, all reasonable assistance.

You shall indemnify and hold Us and Our directors, employees, agents, and consultants harmless for any damages, losses or costs, including, but not limited to, attorney fees, fines, or other costs, such as costs related to the defense of any proceeding that is terminated by settlement, judgment, order, or conviction, or upon a plea of nolo contendere or its equivalent, arising from or in connection with any inaccurate or misleading representations or warranties under this Agreement. Such obligation shall continue after the expiration or termination of this Agreement.

14. Cooperation on Disputes.

You shall cooperate with Us in regard to any inquiry, dispute or controversy in which We may become involved and of which You may have knowledge. Such cooperation shall include disclosure of relevant documents and financial information, and interviews of Your personnel. Such obligation shall continue after the expiration or termination of this Agreement.

15. Audit Rights.

We shall be allowed reasonable access to Your books, records, and other documentation related to this Agreement or Your work with Us, and shall have the right to audit You on a periodic basis.

16. Use of Third Parties.

The Reseller must require that any third parties used in the performance of this Agreement will also fully comply with all Applicable Laws. Reseller is fully responsible for the activities of any third parties it uses in the performance of this Agreement.

17. Entire Agreement.

You agree that this Agreement, and the information which is incorporated into this Agreement by written reference (including reference to information contained in an URL or referenced policies and/or guidelines herein), together with any applicable additional written terms posted on the Program Site related to Our Property or any applicable ordering documents for the purchase of certain Program Benefits, or addendum attached hereto or thereto, constitutes the complete Agreement between the parties governing Your membership in the Program and this Agreement shall supersede all prior or contemporaneous Agreements or representations, written or oral, regarding the subject matter herein and Your membership in the Program. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum or exhibit hereto, the terms of such addendum or exhibit shall prevail. It is expressly agreed that the terms of the body of this Agreement, or addendum hereto, shall supersede the terms in any purchase order or other non-salesforce.com ordering document, and no terms included in any such purchase order or other non-salesforce.com ordering document shall apply to the Program or to any products and/or services ordered. This Agreement, may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of You and Us.

18. Assignment.

Neither You nor We may assign any rights or obligations under this Agreement, without the prior written consent of the other (not to be unreasonably withheld or delayed), provided either You or We may assign this Agreement without consent of the other in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the assigning partys assets not involving a direct competitor of the other party. Any purported assignment in violation of this section shall be void.

19. Who You Are Contracting With, Notices, Governing Law and Jurisdiction

19.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled.

If You are domiciled in:

You are contracting with:

Notices should be addressed to:

The governing law is:

The courts having exclusive jurisdiction are:

A Country in North, South, or Central America or the Caribbean

Salesforce.com, inc., The Landmark @ One Market, Suite 300, San Francisco, California, 94105, U.S.A.

VP, Worldwide Sales Operations
Fax: +1-415-901-7040

California and controlling United States federal law

San Francisco, California, U.S.A.

A Country in Europe, the Middle East, or Africa

salesforce.com Sàrl, Rue de la Longeraie, 9 CH-1110 Morges, Switzerland

Director, EMEA Sales Operations
Fax +41-21-6953701

Switzerland

Switzerland

Japan

Salesforce.com Kabushiki Kaisha, Ebisu Business Tower 18F
1-19-19 Ebisu, Shibuya-ku, Tokyo, 150-0013, Japan

Director, Japan Sales Operations
Fax +81-3-5793-8302

Japan

Tokyo, Japan

A Country in Asia or the Pacific region, other than Japan

Salesforce.com Singapore Pte Ltd, 9 Temasek Boulevard
#40-01, Suntec Tower 2, Singapore, 038989

Director, APAC Sales Operations
Fax +65 6302 5777

Singapore

Singapore

19.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the contact designated by You for Your relevant partner account, and in the case of billing-related notices, to the relevant billing contact designated by You. Notices to Us shall be addressed to the entity You are contracting with, as described above, and to the attention of the Partner Program Manager with a copy sent to Our General Counsel.

19.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

19.4. Waiver of Jury Trial. Each party 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.