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SUBSCRIPTION AGREEMENT
Rally Software Development Corporation ("Rally") has developed certain technology that sits on top of salesforce.com, inc.’s (“salesforce.com”) service offering and is used to provide management services for Rally and/or salesforce.com customers ("Management Service"). The company identified on the Order Form (as defined below) during registration ("Customer") desires to subscribe to the specific Management Service identified in the Order Form for a paid subscription period indicated on the Order Form during registration ("Term"). Rally desires to provide the Management Service to Customer on the terms and conditions set forth in this Subscription Agreement ("Agreement") by permitting Customer to access to the Rally and salesforce.com proprietary technology used by Rally and salesforce.com to deliver the Management Service (“System"), provided that Customer accepts all the terms in this Agreement. You hereby agree that you enter into this Agreement on behalf of Customer and that you have the authority to bind Customer to the terms and conditions of this Agreement.
1. MANAGEMENT SERVICE
1.1 Right to Access the Management Service. Subject to the terms of this Agreement, Rally hereby grants to Customer, during the Term, a non-sublicensable, non-transferable, non-exclusive right to access and use the Management Service through the salesforce.com Service (defined below), in accordance with this Agreement and order documents completed by Customer made a part of this Agreement ("Order Form") which the type of Management Services ordered, the amount of fees to be paid by Customer ("Fees"), the number of and type of users of Customer who are authorized to use the Management Service for Customer ("Users"), the Term of the subscription and the one individual User that will have the responsibility for all administrative and billing matters ("Subscription Administrator"). Customer may use the Management Service solely for Customer's internal business purposes.
1.2 Salesforce.com Service. Customer’s access to the Management Service is dependent on Customer’s access to and the performance of the service provided by salesforce.com to which Customer must be a subscriber (“salesforce.com Service”). Customer is solely responsible for entering into and maintaining a subscription to the salesforce.com Service. Rally shall have no responsibility or liability for any issues related to the operation of the salesforce.com Service, which issues shall be between Customer and salesforce.com.
1.3 Users. Customer may access and use the Management Services and System by up to the maximum number of Users specified on the Order Form and access to the Management Service cannot be shared with anyone other than a User. If Customer wishes to add additional Users during the Subscription Period, Customer's Subscription Administrator must submit a new executed Order Form. Upon Rally's approval of the terms of a new Order Form, Rally shall make the Management Service available to the additional Users on the terms and conditions set forth in this Agreement and the approved new Order Form. With respect to additional Users: (i) the term will be coterminous with the preexisting Term; and (ii) Customer will be responsible for any additional Fees (as defined below) for the additional Users in full for the month in which the new Order Form is approved by Rally.
1.4 RPM Users. If Customer will be accessing the Rally Product Manager Management Service (“RPM”), such access is subject to the following: Only User’s may (a) create features, organize features by setting the feature product field or setting the feature category field, prioritize features by setting the feature scoring values), create Rally stories from a feature and create salesforce views of features (“Manipulate Features”) and (b) create backlog candidates, assign features to backlog candidates and create or update Rally stories from a feature (“Manipulate Backlog Candidates”). Other employees and contractors of Customer who may use RPM to manipulate data (“Feedback Submitters”) may not Manipulate Features or Manipulate Backlog Candidates.
1.5 Support. Support to Customers using the Management Services shall be limited to Rally's applicable online support resources.
2. CUSTOMER'S USE OF THE MANAGEMENT SERVICE.
2.1 Access and Security Guidelines. Rally will provide Customer's System Administrator the number of unique identification names and passwords assigned the User accounts (each, a "User ID") to enable the corresponding number of Users identified in the Order Form to access and use the Management Service. Customer shall be responsible for ensuring the security and confidentiality of all User IDs provided to it. User IDs may be shared within Customer's organization, provided that User IDs may not be provided to any individual who is not a User (other than the Subscription Administrator) and each User account and User ID may be assigned to and used by only one individual User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Management Service, and will notify Rally promptly of any such unauthorized use of which Customer becomes aware. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Management Service. Customer is responsible for all activities that occur under Customer's User accounts.
2.2 Customer Data. Customer is solely responsible for any and all electronic data and information contained in any database, template or other similar document submitted by Customer through the Management Service (“Customer Data”). Rally may take remedial action if Customer Data violates Rally’s acceptable use policy, however, Rally is under no obligation to review Customer Data for accuracy or potential liability.
3. FEES, PAYMENT AND SUSPENSION OF SERVICES. Customer will pay Rally the Fees set forth in and in accordance with the Order Form. All Fees will be billed on an annual basis and are due within thirty (30) days after receipt of invoice, unless otherwise agreed to in the Order Form. If Customer continues to use the Management Service after expiration of the Term, Customer will be deemed to have (a) agreed to obtain the Management Services for an additional annual subscription period; (b) reaffirmed its agreement to this Agreement as it relates to the Term and (c) will pay Rally the then-current Fees for the Management Services as invoiced by Rally for such Term. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all applicable taxes.
4. CONFIDENTIALITY.
4.1 Definition. "Confidential Information" means all information regarding a party's business disclosed under this Agreement. Confidential Information of Customer includes the Customer Data. Confidential Information of Rally includes information derived from or concerning the Management Service, the System or the Documentation and the terms of this Agreement.
4.2 Obligation. Each party agrees (a) to hold the other party's Confidential Information in strict confidence, (b) to limit access to the other party's Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 4.2 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
4.3 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party's lawful possession prior to the disclosure, as shown by the receiving party's competent written records, (c) is independently developed by the receiving party without reference to the disclosing party's Confidential Information, as shown by the receiving party's competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
5. OWNERSHIP. As between the parties, Rally retains all right, title and interest in and to the System. Other than as expressly set forth in this Agreement, no license or other rights in the Technology are granted to the Customer, and all such rights are hereby expressly reserved by Rally. Customer retains all right, title and interest in and to the Customer Data. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Management Service. Customer grants to Rally all necessary licenses in and to such Customer Data solely as necessary for Rally to provide the Management Service to Customer.
6. TERM AND TERMINATION.
6.1 Term. The initial Term will commence when this Agreement is agreed to by Customer and continue for one (1) year, unless otherwise agreed to in the Order Form. Thereafter, the Term will renew for additional one (1) year terms unless either party gives the other party prior written notice of non-renewal within sixty (60) days prior to the expiration of the then-current Term renewal. Rally reserves the right to increase the Fees applicable to any renewal term upon written notice to Customer.
6.2 Suspension; Termination. If any Fees are more than thirty (30) days overdue, Rally may (in addition to any other rights or remedies Rally may have) discontinue the Management Service and suspend all User ID's and Customer's access to the Management Service until such amounts are paid in full. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon termination of this Agreement, all Customer access to or use of the System and Management Service will be immediately suspended. The rights and duties of the parties under Sections 2, 4, 5, 6.2, 7, 8 and 9, as well as any payment obligations, will survive the termination or expiration of this Agreement for any reason.
7. DISCLAIMER.
Rally makes no warranty concerning the System, Management Service or the salesforce.com Service. Rally's sole obligation with regard to the Management Service are expressly set forth in this Agreement. THE MANAGEMENT SERVICE AND THE SYSTEM ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. RALLY AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. RALLY DOES NOT WARRANT THAT THE MANAGEMENT SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR VIRUS-FREE.
8. LIMITATION OF LIABILITY.
RALLY'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (UNDER ANY LEGAL THEORY), THE MANAGEMENT SERVICE AND THE SYSTEM, WILL NOT EXCEED THE GREATER OF (A) $1000 OR (B) THE AMOUNTS ACTUALLY PAID TO RALLY BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER'S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. IN NO EVENT WILL RALLY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, EVEN IF RALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RALLY HAS NO RESPONSIBILITY OR LIABILITY FOR ANY CLAIMS ARISING FROM OR IN CONNECTION WITH THE SALESFORCE.COM SERVICE.
9. GENERAL. Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the parties' permitted successors and assignees. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado without giving effect to principles of conflict of laws. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Denver Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys' fees of the prevailing party. Any failure to perform or delay in the performance of any duties or obligations of Rally set forth in this Agreement (including any downtime) will not be considered a breach of this Agreement if such failure or delay is caused by circumstances beyond Rally's reasonable control ("Force Majeure Event"). In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. 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. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.