Your Agreement with SFDC for Heroku Services
1 General Terms
1.1 Your use of the Heroku Service is governed by this agreement (the "Terms"). "SFDC" means salesforce.com, inc., a Delaware corporation with its principal place of business at 50 Fremont St, Suite 300, San Francisco, California 94105, and its subsidiaries and Affiliates (as defined below) involved in providing the Heroku Service. The "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 Add-ons. "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 In order to use the Heroku Services, you must first agree to the Terms. You can agree to the Terms by actually using the Heroku Services. You understand and agree that SFDC will treat your use of the Heroku Services as acceptance of the Terms from that point onwards.
1.3 If you have entered into or enter into a master subscription agreement with SFDC, that master subscription agreement shall not apply to Heroku Services, and Heroku Services shall not be considered a service or product or part of any service or product under such master subscription agreement, unless otherwise expressly agreed in writing by SFDC. The Heroku Services are delivered from an infrastructure different from the infrastructure underlying other SFDC services, and any representations or commitments by SFDC regarding the security or availability of its services or products do not apply to Heroku Services.
1.4 You may not use the Heroku Services if you are a person barred from receiving the Heroku Services under the laws of the United States or other countries, including the country in which you are resident or from which you use the Heroku Services.
1.5 You agree that your purchases of Heroku Services are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by SFDC or any of its Affiliates regarding future functionality or features.
2. Your Account and Use of the Heroku Services
2.1 You must provide accurate and complete registration information any time you register to use the Heroku Services. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify SFDC immediately.
2.2 Your use of the Heroku Services must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
2.3 You agree not to (a) access (or attempt to access) the administrative interface of the Heroku Services by any means other than through the interface that is provided by SFDC in connection with the Heroku Services, unless you have been specifically allowed to do so in a separate agreement with SFDC, or (b) engage in any activity that interferes with or disrupts the Heroku Services (or the servers and networks which are connected to the Heroku Services).
2.4 Your account has "hard" and "soft" usage limits, as further explained here (or such URL as SFDC may provide). The Heroku Services do not permit you to exceed the hard usage limits. SFDC reserves the right to enforce soft usage limits in its sole discretion, which may result in SFDC serving a "quota exceeded" page to you or users to whom you serve web pages via the Heroku Services ("End Users"). Repeated exceeding of the hard or soft usage limits may lead to termination of your account.
2.5 You may use the Heroku Services only to develop and run applications on the Heroku Services infrastructure. You may not access the Heroku Services for the purpose of bringing an intellectual property infringement claim against SFDC or for the purpose of creating a product or service competitive with the Heroku Services.
3. Service Policies and Privacy
3.1 You agree to comply with the Heroku Acceptable Use Policy available at acceptable use policy (the "Acceptable Use Policy") which is incorporated herein by this reference and which may be updated from time to time.
3.3 SFDC shall use commercially reasonable efforts to make the Heroku Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which you are given notice via the Heroku Services, or (b) any unavailability caused by circumstances beyond SFDC's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SFDC employees), Internet service provider failures or delays, or denial of service attacks.
3.4 You agree that you will protect the privacy and legal rights of the End Users of your application. You must provide legally adequate privacy notice and protection for End Users. If End Users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to SFDC.
4. Fees for Use of the Heroku Services
4.1You will pay all fees specified in all Order Forms hereunder. "Order Forms" means the documents for placing orders hereunder that are entered into between you and SFDC (or any of either party's Affiliates) from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the Heroku Services purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
4.2 Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to SFDC and notifying SFDC of any changes to such information.
4.3 If any amounts invoiced hereunder are not received by by the due date, then at SFDC's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) SFDC may condition future subscription renewals and Order Forms on payment terms shorter than those above.
4.4 If any charge owed by you is 30 days or more overdue, SFDC and/or the applicable SFDC Affiliate may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided we have given you 10 or more days' prior notice that your account is overdue.
4.5 Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If SFDC has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, SFDC is solely responsible for taxes assessable against it based on its income, property and employees.
5. Content on the Heroku Services and Take Down Obligations
5.1 You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Heroku Services are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the web application(s) that you create using the Heroku Services and any source code written by you to be used with the Heroku Services (collectively, "Applications").
5.2 SFDC reserves the right (but shall have no obligation) to remove any or all Content from the Heroku Services. You agree to immediately take down any Content that violates the Acceptable Use Policy, including pursuant to a take-down request from SFDC. In the event that you elect not to comply with a request from SFDC to take down certain Content, SFDC reserves the right to directly take down such Content or to disable Applications.
5.3 In the event that you become aware of any violation of the Acceptable Use Policy by an End User of Applications, you shall immediately terminate such end user's account on your Application. SFDC reserves the right to disable Applications in response to a violation or suspected violation of the Acceptable Use Policy.
5.4 You agree that you are solely responsible for (and that SFDC has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Heroku Services and for the consequences of your actions (including any loss or damage which SFDC may suffer) by doing so.
5.5 You agree that SFDC has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Heroku Service. You further acknowledge that you are solely responsible for securing and backing up your Applications and any Content.
6. Proprietary Rights
6.1 You acknowledge and agree that SFDC (or SFDC 's licensors) own all legal right, title and interest in and to the Heroku Services, including any intellectual property rights which subsist in the Heroku Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
6.2 Except as provided in Section 8, SFDC acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, the Heroku Services, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with SFDC, you agree that you are responsible for protecting and enforcing those rights and that SFDC has no obligation to do so on your behalf.
7. License from SFDC and Restrictions
7.1 SFDC gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by SFDC as part of the Heroku Services as provided to you by SFDC. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Heroku Services as provided by SFDC, in the manner permitted by the Terms.
7.2 You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Heroku Services or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by SFDC, in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Heroku Services or any applications running on the Heroku Services.
7.3 Open source software licenses for components of the Heroku Services released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with SFDC for the use of the components of the Heroku Services released under an open source license.
7.4 SFDC hereby grants you a limited, non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to display the Heroku trademarks and/or logos as provided here ("Marks") for the sole purpose of promoting or advertising that you use the Heroku Services and solely in accordance with the then current Trademark Usage Guidelines for Heroku, which may be found at https://www.heroku.com/policy/trademark (or such other URL SFDC may provide from time to time). You agree that all goodwill generated through your use of the Heroku Marks shall inure to the benefit of SFDC.
8. License from You
8.1 SFDC claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Heroku Services you give SFDC a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling SFDC to provide you with the Heroku Services. Furthermore, by creating an Application through use of the Heroku Services, you give SFDC a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling SFDC to provide you with the Heroku Services.
8.2 By adding a collaborator to your Application, you hereby grant to that user a non-exclusive, royalty-free, non-transferable license, with no right to sub-license, to use, display, perform, reproduce, modify, publish, distribute, list information regarding, edit, translate and analyze such Application(s) and Content as permitted by the relevant Heroku Services functionality or features for the sole purpose of collaborating on development of the Application(s).
8.3 You may choose to or we may invite you to submit comments or ideas about the Heroku Services, including without limitation about how to improve the Heroku Services or our products ("Ideas"). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place SFDC under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
8.4 You agree that SFDC, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Heroku Services.
9.1 SFDC may make available through the Heroku Services additional features, functionality, and services offered by its third-party partners ("Add-ons"). Your use of Add-ons is subject to these Terms and to the applicable fees. You acknowledge for each Add-on you subscribe to or purchase through the Heroku Services, these Terms constitute a separate binding agreement between you and the third party licensor of that Add-on ("the Add-on Provider") only and SFDC is not a party to such agreement. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein and the privacy and security of any of your data processed by the Add-on, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; SFDC is acting as agent for the Add-on Provider in providing each such Add-on to you; SFDC is not a party to the license between you and the Add-on Provider with respect to that Add-on; and SFDC is not responsible for that Add-on, the content therein, the privacy and security of any of your data processed by the Add-on, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on. You acknowledge and agree that SFDC is a third party beneficiary of the agreement between you and the Add-on Provider for each Add-on, and that SFDC will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.
9.2 By subscribing to or purchasing an Add-on, you grant SFDC permission to share your Application, Content, and user information and data with the Add-on Provider as necessary in order to provide you the Add-on.
9.3 The license granted to you to use any Add-on is personal to you, and is not sublicensable to your End Users. You may not provide or resell Add-ons to others.
10.1 SFDC may, and you grant us permission to, make recommendations via the Heroku Services for products or services we think may be of interest to you based on your Application(s), Content, and/or use of the Heroku Services.
11. Modification and Termination of the Heroku Services
11.1 SFDC is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Heroku Services which SFDC provides may change from time to time without prior notice to you. Changes to the form and nature of the Heroku Services will be effective with respect to all versions of the Heroku Services; examples of changes to the form and nature of the Heroku Services include without limitation security patches, added functionality and other enhancements.
11.2 The Terms continue in full force and effect until the Heroku Services ordered by You pursuant to Order Forms have expired or been terminated.
11.4 You are solely responsible for exporting your Content and Application(s) from the Heroku Services prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content and Application(s).
11.5 Upon any termination of the Heroku Services or your account the Terms will also terminate, but Sections 6.1, 11, 12, 13, 14, and 18 shall continue to be effective after the Terms are terminated.
12. Warranties, Exclusive Remedies and Disclaimers
12.1 SFDC warrants that (i) it has validly entered into these Terms and has the legal power to do so, and (ii) the functionality of the Heroku Services will not be materially decreased during a subscription term. For any breach of a warranty above, your exclusive remedy shall be to terminate your subscription to the Heroku Services.
12.2 You warrant that You have validly entered into this Agreement and have the legal power to do so.
12.3 NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT EITHER PARTY'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
12.4 SFDC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE HEROKU SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SFDC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE HEROKU SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE HEROKU SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE HEROKU SERVICES WILL BE ACCURATE.
13. Limitation of Liability
13.1 SUBJECT TO SECTION 12.3, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT ATTRIBUTABLE TO THE HEROKU SERVICES PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT ATTRIBUTABLE TO THE HEROKU SERVICES PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE "FEES FOR USE OF THE HEROKU SERVICES" SECTION ABOVE.
13.2 SUBJECT TO SECTION 12.3 ABOVE, NEITHER PARTY (NOR A PARTY'S SUBSIDIARIES AND AFFILIATES) SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY THE OTHER PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
13.3 THE LIMITATIONS ON LIABILITY IN PARAGRAPH 13.2 ABOVE SHALL APPLY WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
14.1 You shall defend SFDC against any claim, demand, suit or proceeding made or brought against SFDC by a third party arising from or in any way related to (a) your breach of the Terms, (b) your use of the Heroku Services, (c) your violation of applicable laws, rules or regulations in connection with the Heroku Services, or (d) your Content or your Application ("Claim Against SFDC"), and shall indemnify SFDC for any damages, attorney fees and costs finally awarded against SFDC as a result of, and for amounts paid by SFDC under a court-approved settlement of, a Claim Against SFDC; provided that SFDC (a) promptly gives you written notice of the Claim Against SFDC, (b) gives you sole control of the defense and settlement of the Claim Against SFDC (provided that you may not settle or defend any Claim Against SFDC unless it unconditionally releases SFDC of all liability), and (c) provides to you all reasonable assistance, at your expense.
14.2 SFDC shall defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of the Heroku Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give SFDC written notice of the Claim Against You, (b) give SFDC sole control of the defense and settlement of the Claim Against You (provided that SFDC may not settle or defend any Claim Against You unless it unconditionally releases you of all liability), and (c) provide to SFDC all reasonable assistance, at SFDC's expense. In the event of a Claim Against You, or if SFDC reasonably believes the Heroku Services may infringe or misappropriate, SFDC may in its discretion and at no cost to you (i) modify the Heroku Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the Heroku Services in accordance with this Agreement, or (iii) terminate your subscription for such Heroku Services upon 30 days' written notice and refund you any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination.
15. Copyright Policy
You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is SFDC 's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice. For more information, please go to https://www.heroku.com/policy/dmca.
16. Other Content
16.1 The Heroku Services may include hyperlinks to other web sites or content or resources or email content. SFDC may have no control over any web sites or resources which are provided by companies or persons other than SFDC.
16.2 You acknowledge and agree that SFDC is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
16.3 You acknowledge and agree that SFDC is not liable for any loss or damage which may be incurred by you or your End Users as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
17. Non-GA Services
From time to time SFDC may invite you to try, at no charge, SFDC products or services that are not generally available to SFDC customers ("Non-GA Services"). You may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Non-GA Services are not considered "Heroku Services" hereunder and are provided "AS IS" with no express or implied warranty. SFDC may discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
18. General Legal Terms
18.1 The Terms, including all Order Forms, constitute the whole legal agreement between you and SFDC and govern your use of the Heroku Services (but excluding any services which SFDC may provide to you under a separate written agreement), and completely replace any prior agreements between you and SFDC in relation to the Heroku Services. No modification, amendment, or waiver of any provision of thee Terms shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of the Terms and any Order Form, the terms of such Order Form shall prevail.
18.2 There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
18.3 If SFDC provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.
18.4 You agree that SFDC may provide you with notices by email, regular mail, or postings on the Heroku Services. By providing SFDC your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
18.5 You agree that if SFDC does not exercise or enforce any legal right or remedy which is contained in the Terms (or which SFDC has the benefit of under any applicable law), this will not be taken to be a formal waiver of SFDC 's rights and that those rights or remedies will still be available to SFDC.
18.6 The Terms, and your relationship with SFDC under the Terms, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and SFDC agree to submit to the exclusive jurisdiction of the courts located within the county of San Francisco, California to resolve any legal matter arising from the Terms.
18.7 Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under these Terms, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of your use of the Heroku Services upon written notice to the assigning party.