This Agreement is effective between You and LevelEleven, LLC (“Us” or “We” or “Our”) as of the date of You accepting this Agreement.
1. LICENSE. Subject to the terms and conditions of this Agreement, We hereby grant to You a limited, worldwide, non-exclusive, non-assignable, non-transferable (except as expressly permitted in this Agreement) license to use the Services (defined below)for its internal business purposes.
2.1. “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.
2.2. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
2.3. “Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
2.4. “Purchased Services” means Services that You or Your Affiliates purchase under an Order Form.
2.5. “Services” means the monthly subscription to the application that provides You access and use of the self-service Contest Builder that lives within Salesforce.com.
2.6. “Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request) for access to Salesforce.com. Users may include but are not limited to Your employees, consultants, contractors and agents.
2.7. “LevelEleven,” “We,” “Us” or “Our” means LevelEleven, LLC, with offices located at 1555 Broadway 3rd Floor, Detroit, MI 48226.
2.8. “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. “Your Data” means all electronic data or information submitted by You to the Purchased Services, excluding aggregate anonymous data derived from Your usage of the Service.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1. Our Responsibilities. We shall: (i) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: any interruption or suspension any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, (ii) provide the Purchased Services only in accordance with applicable laws and government regulations, and (iii) use commercially reasonable efforts to respond to Your telephone, website, and email inquiries (including requests for technical and support assistance) regarding Your use of the Purchased Services.
4.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations, including, but not limited to, laws governing contests and games of chance (You should seek the advice of competent legal counsel to ensure Your legal and lawful use of the Services). You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. THIRD-PARTY PROVIDERS
5.1. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
5.2. Salesforce.com Services. All Purchased Services interoperate with the Saleforce.com services and depend on the continuing availability of the Salesforce.com API and program. If Saleforce.com ceases to make the Salesforce.com API or program available on reasonable terms for the Service or otherwise interrupts or suspends Our or Your use of the Salesforce.com API or program, We may cease providing Purchased Services and You will be entitled to a pro-rated refund, credit, or other compensation, provided the interruption or suspension of the Purchased Services was not the result of your wrongful actions or inaction. If as a result of your wrongful actions or inaction, Salesforce.com ceases to make the Salesforce.com API or program available on reasonable terms for the Service or otherwise interrupts or suspends Our or Your use of the Salesforce.com API or program, We may cease providing Purchased Services without entitling You to any refund, credit, or other compensation.6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on a monthly subscription fee and not actual usage, (iii) except as otherwise provided in this Agreement, payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for the pro-rated portion of the month in which the subscription is used and the full monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. Acceleration, Suspension of Service, and Payment Disputes. If any amount owing by You under this or any other agreement for Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), we will send you notice of the delinquency and inquire as to the status of payment. If payment is not received within 60 days, We may send you notice that Your use of the Services will be suspended. We may also, if payment is not received within 60 days, without limiting Our other rights and remedies, notify you in writing that we have accelerated Your unpaid fee obligations so that all of Your obligations become immediately due and payable. If payment is not received within 90 days, We may suspend Your use of the Service until all arrearages, including any accelerated amounts, are paid in full. If we suspend Services as set forth in this Section 6.3, neither We nor Salesforce.com, Inc. will have any liability to You for a refund or damages. We shall not exercise Our rights under this Section 6.3 if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.4. Taxes. 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, 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 We have 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, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Intellectual Property and Your Data. Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Services under this Agreement do not convey any additional rights in the Services, or in any Intellectual Property Rights associated therewith. LevelEleven, and our other product and service names, and logos used or displayed on the Services are registered or unregistered trademarks of LevelEleven (collectively, “Marks”), and You may only use such Marks to identify yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent LevelEleven, its services or products. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8.2. 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.
8.3. Protection of Your Data. Without limiting the above, although We do not anticipate receiving any personally identifiable data from You, with regard to your use of the Services, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 9.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
8.4. 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 Party’s 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.
9. WARRANTIES AND DISCLAIMERS
9.1. Our Warranties. We warrant that the functionality of the Services will not be materially decreased during a subscription term and will be consistent with the specifications and features published on Our website as of the subscription start date. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
9.2. Your Warranties. You warrant that Your use of the Services complies with all applicable laws and regulations, including, but not limited to, those regulating contests and games of chance.
9.3. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
9.4. Disclaimer. Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law. EXCEPT AS EXPRESSLY STATED in this agreement, YOU ACKNOWLEDGE THAT LEVELELEVEN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY.
10.1. Indemnification by LevelEleven. LevelEleven will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Services as permitted hereunder, brought by a third party alleging that the Services infringe a valid patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). LevelEleven shall, at its expense, defend such Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by LevelEleven for such defense, provided that (i) You promptly notify LevelEleven of the threat or notice of such Claim, (ii) LevelEleven will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) You fully cooperate with LevelEleven in connection therewith. If Your use of the Services has become, or in LevelEleven’s opinion is likely to become, the subject of any such Claim, LevelEleven may at its option and expense (a) procure for You the right to continue using the Services as set forth hereunder; (b) replace or modify the Services to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement and repay You any unused fee for the Services. LevelEleven will have no liability or obligation under this Section 11.1 with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Services by anyone other than LevelEleven; or (iii) the combination, operation or use of the Services with other hardware or software where the Services would not by itself be infringing.
10.2. Indemnification by You. You shall defend LevelEleven against any claim, demand, suit, or proceeding (each, a “Claim”) made or brought against LevelEleven by a third party alleging that Your use of the Services violated applicable law, and shall indemnify LevelEleven for any damages finally awarded against LevelEleven in connection therewith, including reasonable fees and expenses of the attorneys engaged by You for such defenses, provided that (i) we promptly notify You of the threat or notice of such Claim, (ii) You will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) We fully cooperate with You in connection therewith.
10.3. Exclusive Remedy. This Section 10 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. EXCEPT FOR BREACHES OF SECTIONS 8 (CONFIDENTIALITY), AND 10 (INDEMNIFICATION) ABOVE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $5,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 11 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. EXCEPT FOR BREACHES OF SECTIONS 8 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
12.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. User subscriptions are non-cancelable once accepted by Us, and the number of User subscriptions specified in an accepted Order Form cannot be decreased, prior to the end of the applicable Order Form, regardless of any nonuse or other conduct or inaction on Your part.
12.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. 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 Us shall be addressed to LevelEleven, LLC, 1555 Broadway 3rd Floor, Detroit, MI 48226, Attn: General Counsel. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.2. Agreement to Governing Law and Jurisdiction. In an effort to select a neutral jurisdiction for resolving disputes and as each of the parties have entered into agreements with Salesforce.com that subject the parties to the laws of the State of California and the jurisdiction of the County of San Francisco, the Parties agree that: i) this Agreement shall be governed by, construed and enforced in accordance with the laws of the State of California, applicable to contracts negotiated, executed and performed wholly within the State of California without regard to any choice of law; and ii) each Party hereby irrevocably submits to the exclusive jurisdiction of the Courts within the County of San Francisco located in the State of California.
13.3. 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.
14. GENERAL PROVISIONS
14.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.3. Waiver and Cumulative Remedies. 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.
14.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.5. Attorney Fees. The prevailing party in a dispute shall be entitled to recover from the other party reasonable attorney fees and other costs incurred by it and to collect any fees or charges due it under this Agreement.
14.6. Assignment. Neither party may assign any of its rights or obligations hereunder, 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 this Agreement in its entirety (including all Order Forms), 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 this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically 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 this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.8. Federal Government End Use Provisions. If you are a U.S. federal government end user, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, these Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.