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(Last Updated: Thursday May 17, 2018 – 10:58 GMT.)
This agreement is made between the Parties effective as of the effective date of the relevant Order Form (“Effective Date”) and contains legally binding terms and conditions for your access and use of the hosted applications and services provided by Thunderhead (One) Ltd (“Agreement”). READ THESE TERMS CAREFULLY. THEY FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND THUNDERHEAD (ONE) LTD.
If you are licensing Services on behalf of an organization, “You” herein refers to that organization.
By accepting and agreeing the Order Form or accessing or using the Services, You: (i) acknowledge that You have read and understand this Agreement; (ii) represent that You have the legal authority to accept this Agreement; and (iii) agree to be legally bound by this Agreement.
WHEREBY IT IS AGREED:
The expressions listed in this section 1 shall have the meanings ascribed to them in this Agreement:
“API” means utilization of the Services by automated means (as opposed to by Users) such as an application programming interface;
“Business Use” means use of the Services for Customer’s internal business purposes;
“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;
“Customer” or “You” or “Your” means the contracting entity and any organisations listed in the Order Form as the beneficiaries of the Services;
“Data” means all electronic data or information submitted by or on behalf of Customer including data submitted through an API and, where the context so admits, the content and or form/appearance of any document templates created by Customer in the course of using the Services;
“DPA” means the data processing addendum at https://www.thunderhead.com/data-processing-addendum/;
“Error” means any material and reproducible failure of the Services to operate in accordance with the User Guide (but not the availability of the Service itself);
“Force Majeure” means circumstances beyond a Party’s reasonable control, including without limitation acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving the Parties’ employees), equipment (including Third Party Applications) failure, internet service provider failures or delays, or denial of service attacks;
“Interaction” means a call to or from Thunderhead to trigger activity, or send or retrieve data;
“License Term” means the license term for access and use of the Services by Customer as detailed in the relevant Order Form;
“Malicious Code” means, without limitation, any automatic restraint, viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs that interfere with the provision of the Services;
“Order Form” means the ordering document or online order entered into between You and SFDC, or its authorised affiliates or outbound resellers, to effect Your purchase of products and services (including the Services);
“Overage” means where the Volume exceeds the limits specified in the Usage Policy or the Order Form;
“Parties” or “Party” means collectively Thunderhead and Customer or each of them respectively;
“Personal Data” means any information relating to an identified or identifiable natural person where such data is Data. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Security and Privacy Documentation” means the Data Protection and Security Policy as displayed on the Website from time to time regarding how Thunderhead processes Personal Data in respect of the Services;
“Services” means access to: (i) the relevant Solution provided via Customer’s login link at the Website or another designated web site or IP address; and/or (ii) ancillary online or offline products and services (other than any consultancy services) provided or licensed to Customer by Thunderhead; all as specified in the Order Form;
“SFDC” means salesforce.com, inc., a Delaware corporation with its principal place of business at The Landmark @ 1 Market, Suite 300, San Francisco, California 94105;
“SLA” means the service level agreement detailed in Schedule 1;
“Solution” means the particular Thunderhead product(s) specified in the Order Form;
“Support” means technical support for the Services, which may be updated by Thunderhead from time to time, and further described in section 9;
“Third Party” means a person or entity other than Thunderhead and Customer. Third Party includes SFDC and its affiliates;
“Third Party Application(s)” means any online applications and offline software products or services that interoperate with the Services that are not provided by Thunderhead. Third Party Applications includes the SFDC service branded as ‘Marketing Cloud’ and all other SFDC services;
“Thunderhead” or “Us” or “We” or “Our” means Thunderhead (One) Ltd. with a registered office at Ingeni Building, 17 Broadwick Street, Soho, London W1F 0DJ;
“Thunderhead Entities” means (i) Thunderhead; and (ii) any company or entity including a joint venture in which Thunderhead holds 50% or more of the shares or voting power;
“Thunderhead Technology” means all proprietary technology belonging to or used by Thunderhead Entities (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) which is made available to Customer hereunder or is otherwise used by Thunderhead to provide the Services;
“Usage Policy” means the acceptable and fair use policy as displayed on the Website from time to time regarding limits on Volumes available to Customers when utilising the Services;
“User Guide” means the online user guide for the Services, accessible via login at the Website, as updated from time to time;
“User(s)” means those individuals who use the Services for the Business Use in the territory specified in the Order Form. Users may include but are not limited to Customer’s employees, consultants, contractors and agents;
“Volumes” means amounts and levels of resource made available to Customer when using the Services, including any Interaction volumes as detailed in the relevant Order Form;
“Website” means https://www.thunderhead.com and/or other domain names designated from time to time;
“Working Day” means 9 AM to 5 PM UK time Monday to Friday excluding UK public holidays.
Access to Services
Thunderhead grants Customer a non-exclusive, non-transferable, right to permit the Users to access and use the Services for the License Term, only for Business Use and only in the territory specified in the Order Form (if applicable). We may make Services available to You on a free of charge, pilot or beta basis and any such Services shall be used solely for trial and evaluation purposes in connection with Your business and may be subject to additional terms. Thunderhead reserves all rights not expressly granted herein.
Customer agrees that the Services may only be used in accordance with the limits and purposes set out in section 1 and Customer agrees to make no other use of the Services, either for itself or for the benefit of any other person or entity, or permit any Third Party to make such utilization whether or not as part of an outsourcing arrangement or as an application service provider. Customer shall have no other rights or licenses hereunder with respect to Thunderhead Technology. Customer acknowledges that if the terms of an Order Form permit use of the Services by any Third Party then Customer shall procure such Third Party’s full compliance with these terms and agrees that any act or omission of such Third Party be deemed to be the act or omission of Customer.
Thunderhead will: (i) abide by the SLA (if applicable) with respect to the Services identified therein, and with respect to all other Services, use all reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give You advance notice), (b) any unavailability caused by Force Majeure, and (c) unavailability of the relevant Third Party Application; and (ii) provide the Services in accordance with applicable laws and governmental regulations.
Thunderhead will not: (i) modify the Data (except where this is necessary to provide the Services or resolve or prevent Errors); (ii) disclose the Data (except to its sub-processors and Third Party Applications, as compelled by law in accordance with section 3 or as expressly permitted in writing by Customer); (iii) access the Data (except where this is necessary to provide the Services or resolve or prevent Errors or to create backups); or (iv) copy Your Data (except to enable Us to fulfil Our obligations under this Agreement).
The obligations of Thunderhead hereunder are subject to and conditioned upon the timely performance of Customer’s obligations hereunder.
Restrictions on Use and Volumes
Customer will: (i) be responsible for Users’ compliance with these terms and conditions; (ii) be responsible for the accuracy, quality and legality of the Data and the means by which Customer acquired the Data; (iii) use best efforts to prevent unauthorized access to or use of the Services, and notify Thunderhead promptly of any such unauthorized access or use; and (iv) use the Services only in accordance with the terms of this Agreement and applicable laws and government regulations.
Customer will not: (i) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Thunderhead Technology (except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties); (ii) licence, sell, resell, transfer, rent, lease, distribute, exploit or otherwise make the Services available to anyone other than the Users; (iii) use the Services to store or transmit infringing, obscene, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights; (iv) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) copy, modify, transmit, distribute, frame or mirror any Thunderhead Technology in any form or media or by any means; (vi) use the Services to store or transmit Malicious Code or in any way that is unlawful or fraudulent; (vii) interfere with, damage or disrupt the integrity or performance of the Services, the Thunderhead Technology or Third-Party data; (viii) attempt to gain or assist third parties to gain unauthorized access to the Services or their related systems or networks; or (ix) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. If at any time Customer contravenes any of the prohibitions listed in this section 2, Thunderhead may treat such contravention as an irremediable breach entitling Thunderhead to terminate the relevant Agreement.
Services and Data may be subject to usage limitations, including, for example, the maximum Interactions specified in Order Forms. Thunderhead will calculate and record the Volumes during the License Term and in the event of an Overage Thunderhead may notify You of such Overage and may work with You to reduce Your usage so that it conforms with any limits. You will ensure that You do not use any of our Services in a manner which violates Our Usage Policy.
If You use Third Party Applications with the Services, You accept that those Third Party Applications may, in order to operate with the Services, access Your Data. Thunderhead shall not be responsible for any disclosure, modification or deletion of Your Data to the extent this results from any such access by Third Party Applications.
Service features that interoperate with Third Party Applications depend on the continuing availability of the relevant API for use with the Services. If the providers of the Third Party Applications cease to make the API available on reasonable terms for the Service, Thunderhead may cease providing such Service features without entitling You to any refund, credit, or other compensation.
Notwithstanding section 5 and the License Term, Customer acknowledges that the availability and its use of the Services is conditional upon Customer having a valid license to use the relevant Third Party Application.
Customer’s Obligations and Acknowledgements
At Thunderhead’s request, Customer shall promptly furnish Thunderhead with written certification verifying that the Services are being used in accordance with the relevant provisions of this Agreement, including for Business Use and in accordance with any restrictions contained in the Order Form.
Customer acknowledges that: (i) the Services have been designed for communications/customer experience management generally and not specifically for Customer’s particular requirements; and (ii) Your ordering of the Services hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding existing or future functionality or features of the Services.
Customer is responsible for ensuring that its Users are trained in using the Services and that the Services are used for purposes permitted in this Agreement and the relevant provisions of the Order Form and in accordance with the User Guide. In particular, Customer agrees that if a User selects an option or otherwise uses the Service in such a way that results in the Service contravening any laws or regulations (including laws and regulations governing confidentiality and the processing of Personal Data) or failing to conform to Customer’s data security requirements, Thunderhead will not be responsible for such contravention or failure.
Except as expressly provided for in this Agreement, Customer agrees that it is solely responsible for the results obtained from the use of the Services and for conclusions drawn from such use. Thunderhead shall have no liability for any damage caused by errors or omissions in any information, instructions, scripts or other Data provided to Thunderhead by Customer in connection with the Services, or any action taken by Thunderhead at Customer’s direction.
Customer is responsible for the input and maintenance of the Data and for maintaining effective back-up procedures as may be necessary to replace any Data in the event of loss or damage regardless of cause. Thunderhead shall use reasonable endeavours to comply, at all times during the License Term, with the Security and Privacy Documentation as such document may be amended by Thunderhead from time to time. In the event of any loss or damage to Data caused by Thunderhead, Thunderhead’s sole remedy shall be to restore the lost or damaged Data from the latest back-up of such Data maintained by either Thunderhead or Customer (in which case Customer shall co-operate and provide all necessary access to its systems).
Warranty and Disclaimer
Each Party represents and warrants that it has the legal power and authority to enter into the Agreement.
Subject to section 5, with respect to the Services, Thunderhead further represents and warrants that: (i) the Services will conform substantially in accordance with the User Guide, under normal use and circumstances; and (ii) it will use reasonable technical means to ensure that the Services do not contain any Malicious Code or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or Data. In the event of a breach of these warranties, Customer’s sole remedy and Thunderhead’s sole obligation will be for Thunderhead to make reasonable commercial efforts to correct the non-conformity through the provision of Support.
Customer further represents and warrants that: (i) it has not falsely identified itself nor provided any false information to gain access to the Service; (ii) the Data does not infringe the intellectual property or privacy rights of any Third Parties; and (iii) it has secured all necessary rights, licenses and permissions (such as font licenses and rights to disclose data received by Customer which is included in the Data) so that Thunderhead can use the same when providing the Services and or Support.
EXCEPT AS OTHERWISE EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING SECTIONS 1, 5.2 AND 5.3, THUNDERHEAD MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE SERVICES. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES IMPLIED BY STATUTE OR COMMON LAW ARE HEREBY DISCLAIMED BY THUNDERHEAD TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ANY SERVICE OFFERED TO YOU ON A FREE OF CHARGE, PILOT OR BETA BASIS IS PROVIDED TO YOU “AS IS”, AND ANY USE BY YOU OF THE SERVICE DURING THE TERM WILL BE AT YOUR SOLE RISK. THUNDERHEAD MAKES NO WARRANTIES RELATING TO SUCH SERVICE AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE FOREGOING PROVISION SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ANY SLAS CONTAINED WITHIN THIS AGREEMENT SHALL NOT APPLY TO SUCH SERVICES.
Limitation of Liabilities and Customer Indemnity
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
IN ALL OTHER CASES EACH PARTY’S LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT, FOR ALL LOSSES, COSTS, EXPENSES AND DAMAGES, WHETHER ARISING IN CONTRACT, BY REASON OF NEGLIGENCE OR OTHERWISE, WILL NOT IN THE AGGREGATE EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000 USD). IN NO EVENT (TO THE EXTENT NOT PROHIBITED BY LAW) WILL EITHER PARTY BE LIABLE FOR: (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL COSTS, LOSSES, DAMAGES OR EXPENSES; OR (II) LOSS OF BUSINESS, PROFITS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS; OR (III) LOSS OR CORRUPTION OF DATA. IN NO EVENT (TO THE EXTENT NOT PROHIBITED BY LAW) WILL THUNDERHEAD BE LIABLE FOR ANY SUMS PAID BY CUSTOMER TO A THIRD PARTY (EXCEPT FOR PAYMENTS TO SFDC RELATING TO THE SERVICES), OR LOSS WHICH COULD HAVE BEEN AVOIDED BY THE CUSTOMER FOLLOWING THUNDERHEAD’S REASONABLE ADVICE AND INSTRUCTIONS.
YOU UNDERSTAND AND AGREE THAT THIS AGREEMENT IS BETWEEN YOU AND THUNDERHEAD AND NO THIRD PARTIES, INCLUDING SFDC, ARE A PARTY TO THIS AGREEMENT. NO THIRD PARTY, INCLUDING SFDC, IS RESPONSIBLE OR LIABLE UNDER THIS AGREEMENT.
Customer shall indemnify and hold Thunderhead, Thunderhead Entities and each of its officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a claim alleging that use of the Data infringes a copyright, patent, or a trademark of, or has caused harm to the rights of a Third Party, provided in any such case that Thunderhead: (i) promptly gives notice of the claim to Customer; (ii) gives Customer sole control of the defence and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases Thunderhead of all liability and does not adversely affect Thunderhead’s business or the Services); (iii) provides to Customer all available information and reasonable assistance; and (iv) has not compromised or settled such Third-Party claim.
Termination and Suspension
This Agreement starts on the Effective Date and will continue for the License Term unless terminated by either Party: (a) in the case of breach of the Agreement by the other Party which is not remedied within thirty (30) days’ notice from the Party not in breach; (b) immediately in the case of breach of the Agreement by the other Party which is not capable of remedy; or (c) immediately, in the event that the other Party makes an assignment, composition or arrangement for the benefit of creditors, if a receiver or receiver-manager or administrator or administrative receiver or trustee is appointed over the whole or any part of its assets or undertaking or if an order is made or an effective resolution passed for the winding up of the other.
This Agreement shall terminate immediately upon the expiry or termination of the relevant Order Form between Customer and SFDC.
In the event SFDC notifies Thunderhead that it has suspended a Customer account or a specific User account or has terminated a Customer account or a specific User account, Thunderhead shall be entitled to suspend or terminate the relevant Customer account or the specific User account accordingly in respect of the Services, without incurring any liability for such suspension or termination.
Any termination hereunder shall be without prejudice to any other rights or remedies either Party may be entitled to hereunder or at law or in equity and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
Upon expiry or earlier termination of this Agreement, Customer shall cease to be entitled to use the Services, and upon request certify in writing to Thunderhead that it has complied with this provision. Thunderhead shall not be responsible for any refund of any fees paid or payable by You for the Services in accordance with the Order Form in the event of early termination of this Agreement. Customer also acknowledges that Thunderhead will delete all Data within thirty (30) days after termination and or expiry of this Agreement.
Confidentiality and Privacy
Thunderhead agrees that (subject to the last sentence of this section 1) the Data (including any Personal Data contained therein) constitutes Confidential Information belonging to Customer and Customer agrees that the Services constitute Confidential Information belonging to Thunderhead and the Receiving Party agrees to treat as Confidential Information the business and marketing plans, technology and technical information, product plans and designs, and business processes of the Disclosing Party. However, Confidential Information shall not include any information that is: in the public domain (through no unauthorised disclosure by the Receiving Party); already known by the Receiving Party; or is disclosed to the Receiving Party by a third party who, to the Receiving Party’s knowledge, is authorised to do so.
Receiving Party agrees that it may only use the Confidential Information which it receives from the Disclosing Party for the purpose of performing its obligations or exercising its rights under this Agreement (“Permitted Purpose”), and that it may only disclose such Confidential Information to its officers, employees, contractors and agents (or in the case of Thunderhead as the Receiving Party, to the Thunderhead Entities, SFDC, and each of their officers, employees, contractors and agents) to the extent they need to know and use it for the Permitted Purpose. Receiving Party shall ensure that such officers, employees, contractors and agents are bound by equivalent obligations in respect of the Confidential Information to those set out hereunder and shall use its best efforts to ensure that they abide by such obligations.
If the Receiving Party is compelled by law, regulation or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment, and continue to treat such Confidential Information in accordance with its obligations under this section 8.
Each Party acknowledges that the Disclosing Party would be irreparably harmed if Receiving Party’s obligations hereunder are not specifically enforced and that Disclosing Party would not have an adequate remedy at law in the event of an actual or threatened violation hereof. Therefore, the Receiving Party agrees that Disclosing Party shall be entitled to seek an injunction or any appropriate decree of specific performance for any actual or threatened violations by the Receiving Party or its employees, agents, representatives or customers, without the necessity of Disclosing Party showing actual damages or that monetary damages would not afford an adequate remedy.
Customer acknowledges and agrees that it is responsible for and will comply with all requirements regarding the collection, use, processing, storage, protection, disclosure, transfer and destruction of Personal Data comprised within the Data. To the extent that Thunderhead accesses or holds Personal Data comprised in the Data in connection with this Agreement, the terms of the DPA, which are hereby incorporated by reference, shall apply and the Parties agree to comply with such terms.
This section 8 shall survive termination howsoever arising.
Customer requests and Thunderhead agrees to provide reasonable Support for the Licence Term in accordance with this section 9. Thunderhead’s obligations under this section 9 only apply during the Licence Term.
Thunderhead shall not be obliged to provide Support for Services which are provided on a free of charge, pilot or beta basis.
Support is only available in the English language and is provided solely at the Website.
Upon identification of any Error, Customer shall provide Thunderhead with enough information to reproduce the Error. If Thunderhead is unable to replicate the Error, Thunderhead will request a second sample. If Thunderhead is still unable to replicate the Error from this second sample then Thunderhead will close the reported Error. Thunderhead will notify Customer as soon as possible if it determines that no Error exists or if Thunderhead is unable to reproduce the reported Error.
Thunderhead shall use all reasonable efforts to respond to an Error and will communicate with Customer in relation to its attempts to resolve the Error.
Any Support provided does not include any training services and the offering of any such services shall be at the sole option of Thunderhead and subject to additional fees and charges to be agreed separately.
Support is contingent on Customer’s compliance with the following additional obligations: (i) Customer’s personnel shall be trained in use of the Services; (ii) Customer shall provide Thunderhead with sufficient documentation, data, details and assistance with respect to any reported Errors so as to enable Thunderhead to reproduce and verify the same as an Error; and (iii) Customer shall assist Thunderhead to diagnose and correct reported Errors by providing: (a) all relevant documentation and records, including sample output and other diagnostic information; (b) interaction with personnel who have authority to implement remedial actions as instructed by Thunderhead; and (c) access to Customer’s live production environment in which the Data is displayed. Customer acknowledges that failure to provide such assistance will affect Thunderhead’s ability to provide Support.
Provision of Support as described in this section 9 is Thunderhead’s sole obligation, and Customer’s sole remedy, with respect to the support of the Services. Thunderhead shall have no other liability or obligation to Customer with respect to any Errors or other real or perceived problems with the Services.
Intellectual Property Ownership and Indemnity
Thunderhead acknowledges that You own all rights, title and interest in and to all of Your Data. You shall have sole responsibility for the intellectual property ownership of and/or right to use all of Your Data and the consequences arising from Your failure to meet such responsibilities.
Thunderhead (and its licensors, where applicable) shall have and maintain ownership of all intellectual property rights created or produced by it while performing any services, including any routines, libraries, tools, methodologies, processes or technologies.
Thunderhead (and its licensors, where applicable) shall further own all right, title and interest to the Thunderhead Technology, and the Services, including to any and all enhancements, modifications, extensions and derivative works thereof. As between the Parties, Thunderhead shall further own all right, title and interest to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided or improvements developed by Customer and You hereby assign to Thunderhead all rights, title and interest in such suggestions, ideas, enhancement requests, feedback, recommendations or other information provided or improvements, including all intellectual property rights therein. This Agreement does not convey to Customer any rights of ownership in or related to the Services, the Thunderhead Technology or to any other intellectual property rights owned or used by Thunderhead hereunder. The Thunderhead name, the Thunderhead logo, and the product names associated with the Services are trademarks of Thunderhead, and no right or license is granted to use them.
Thunderhead shall indemnify Customer against any claim that the normal use of the Services infringes UK and/or USA copyright, patent or trademark rights of any Third Party provided that: (i) Thunderhead is given immediate and complete control of such claim; (ii) Customer does not prejudice Thunderhead’s defence of such claim; (iii) Customer at Thunderhead’s expense gives Thunderhead all reasonable assistance with such claim; (iv) such claim does not arise from an intentional tortious act or the negligence of Customer; (v) such claim is not based upon the use of the Services in an application or environment for which the Services was not designed or contemplated; (vi) such claim does not arise as a result of modifications and/or improvements of the Services introduced or made by Customer; and (vii) such claim does not arise from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided or authorized by Us, if our Services or use thereof would not infringe without such combination.
Thunderhead shall at its option have the right to change all or any part of the Services in order to avoid any infringement.
This section 10 states the entire liability of Thunderhead to Customer in respect of the infringement of the copyright, patent or trademark rights of any Third Party.
Any notice or other document given by either Party to the other hereunder shall be in writing and marked for the attention of the Managing Director. Subject to section 2, any such notice may be delivered: (i) personally or by first class pre-paid mail to the address of the recipient set out hereunder (or such other address as that Party may advise by notice); or (ii) by electronic mail to the email address supplied on request. Such notice shall be deemed to have been served: if personally, when delivered; if by first class mail, three Working Days after mailing or when signed for by the recipient; and if by electronic mail, the first Working Day after transmission.
Customer may not assign the whole or any part hereof to any person, including any affiliate, without Thunderhead’s prior written consent. Thunderhead shall be entitled to assign or otherwise sub-contract its rights and obligations hereunder.
No relaxation, forbearance, delay or indulgence by either Party in enforcing any of these terms and conditions or the granting of time by either Party to the other shall prejudice, affect or restrict the rights and powers of that said Party hereunder nor shall any waiver by either Party of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof.
The provisions and Schedule(s) to this Agreement and all documents referred to in it (including the relevant provisions of the Order Form, the Usage Policy and the DPA) constitute the entire agreement between the Parties in relation to the Services and supersede all prior communications, negotiations, representations and agreements (whether written or oral) of the Parties with respect thereto. In the event of any conflict or inconsistency between any section of the Agreement and the terms of any Order Form, the terms of the Agreement shall prevail unless the relevant terms of the Order Form specifically state that the section in the Order Form will prevail. Thunderhead may change or modify this Agreement from time to time provided that such changes do not have a materially adverse impact on the Services or Customer or materially affect the rights, remedies and obligations contained within this Agreement and continued use of the Services will confirm Your acceptance of such modification or changes. If Thunderhead makes any other changes to this Agreement, such changes will not take effect until the commencement of any renewal period (if applicable), unless required otherwise by applicable law. Thunderhead shall notify Customer of any changes by posting an updated version of this Agreement on the Website. Renewal, including auto-renewal, of the Services will confirm Your acceptance of the revised Agreement.
No person who is not a Party hereto (including any employee, officer, agent, representative or subcontractor of either Party) shall have the right to enforce any term hereof without the express prior agreement in writing of the Parties.
Any difficulties or uncertainties in interpretation arising shall be solved by reference to the English text and each Party shall be responsible for its own costs incurred in making any translations.
If You are domiciled in the United States of America, this Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to its conflicts of law principles and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of New York, excluding that State’s conflicts of law principles, and shall be subject to the exclusive jurisdiction of the courts of the State of New York. If You are domiciled in any other country outside the United States of America, this Agreement shall be governed by and construed in accordance with the laws of England and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of England and shall be subject to the exclusive jurisdiction of the English courts.
If any provision hereof or any part of any such provision is held to be invalid or unenforceable, such provision or part (as the case may be) shall be ineffective only to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable or otherwise prejudicing or affecting the remainder of such provision or any other provision hereof.
Schedule 1: Service Level Agreement
This SLA applies solely to the Services currently branded as “Thunderhead One Engagement Hub”. This SLA does not apply to any other Thunderhead Services. Thunderhead shall have no obligations under this SLA during any period in which Customer is in material breach of the Agreement.
Thunderhead shall use all reasonable efforts to make the Thunderhead Services available 99.5% of the time, except as provided below. Availability will be calculated per calendar month, as follows:
- total means the total number of minutes in the calendar month;
- nonexcluded means downtime that is not excluded; and
- excluded means:Platform Planned Maintenance.
Any planned downtime for all Thunderhead Services of which Thunderhead and/or SFDC gives 24 or more hours’ notice in accordance with this Agreement (or the Order Form) or via a conspicuous on-screen message in the Thunderhead Services. Thunderhead will use commercially reasonable efforts to schedule all planned downtime during the hours from 7:00 p.m. Friday to 1:00 a.m. Sunday, U.S. Pacific Time for North American hosted Services and 7:00 p.m. Friday to 1:00 a.m. Sunday, GMT for European hosted Services. Such planned downtime shall not exceed 8 hours in a calendar month; or
Any unavailability caused by circumstances beyond Thunderhead’s reasonable control, including, without limitation, acts of nature, acts of government, civil unrest, acts of terror, strikes or other labor problems (other than those involving Thunderhead employees), denial-of-service attacks, third-party Internet or cloud service provider failures or delays, or Third Party Applications, in each case, provided that Thunderhead has taken reasonable steps to mitigate against the effects of such event.
For any partial calendar month during which Customer subscribes to the Thunderhead Services, availability will be calculated based on the entire calendar month, not just the portion for which Customer subscribed.