ORACLE CRM ON DEMAND USER AGREEMENT V061509

IMPORTANT-READ THIS ORACLE CRM ON DEMAND USER AGREEMENT (THIS “USER AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS USER AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS USER AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS USER AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS USER AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE ON DEMAND SERVICE.

This User Agreement is between you and Oracle USA, Inc. (“Oracle”). The terms of this User Agreement shall apply to use of the subscription services identified as the On Demand Service (the “On Demand Service”) in the Ordering Document as well as all other services provided by Oracle that are set forth in such Ordering Document (including, any exhibits and/or statements of work thereunder) (“Services”). This User Agreement and the Ordering Document shall collectively be referred to herein as the “Agreement”. The terms of the Agreement shall control over any different or additional terms of any purchase order or other non-Oracle document, and no terms included in any such purchase order or other non-Oracle document shall apply to the On Demand Service, Services and/or On Demand Materials. The terms of the Ordering Document between you and Oracle shall control over any conflicting terms in this User Agreement.

If you are obtaining or have obtained the On Demand Service or Services from a third party authorized by Oracle (“Partner”), then: (a) the terms of this User Agreement shall apply to the On Demand Service and all other Services that are being obtained or were obtained by you from Partner; (b) this User Agreement is between Oracle and you, however, the terms of the agreement by which you order from Partner the On Demand Service and any related products or Services (which shall be referred to herein as the “Partner Order”) is between you and the Partner who has executed the Partner Order with you; (c) for purposes of interpreting this User Agreement, the Partner Order shall be deemed to be the “Ordering Document”, and collectively with this User Agreement, the “Agreement”; and (d) notwithstanding the last sentence of the preceding paragraph, the Partner Order shall not amend or modify any terms of this User Agreement, and the terms of this User Agreement shall control over any conflicting terms in the Partner Order.

1. Licenses from Oracle. Oracle grants to you, during the Subscription Term (as defined in Section 5) of the applicable Ordering Document, the nontransferable, nonexclusive, worldwide right to permit those individuals authorized by you or on your behalf, and who are your employees, agents or contractors (“Users”), to use the On Demand Service and any materials developed by or on behalf of, Oracle and delivered to you in the course of performing Services (the “On Demand Materials”) solely in connection with the On Demand Service, all solely for your own internal business operations and subject to the terms of the Agreement, including the online documentation for the On Demand Service. The On Demand Service consists of system administration, system management, and system monitoring activities that Oracle provides for the certain CRM software programs provided as part of the On Demand Service as identified in the Ordering Document. The rights granted to you in the Agreement are subject to all of the following agreements and restrictions: (i) the maximum number of Users that you authorize to access the On Demand Service shall not exceed the number of User licenses (also referred to as “subscriptions”) you have purchased, as evidenced in the Ordering Document; (ii) User licenses cannot be shared or used by more than one individual User (unless it is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use such license); (iii) you shall not permit timesharing or service bureau use, or license, sell, rent, lease, transfer, assign, distribute, display, outsource, disclose, or otherwise commercially exploit or make the On Demand Service or the On Demand Materials available, to any third party other than, as permitted under the terms of the Agreement, an authorized User; (iv) you shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the On Demand Service or On Demand Materials or access or use the On Demand Service or On Demand Materials in order to build or support and/or assist a third party in building or supporting, products or services competitive to Oracle; (v) except as expressly stated herein, no part of the On Demand Service or On Demand Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vi) you shall not disclose any review of the On Demand Service, including but not limited to the results of any performance tests, to any third party without Oracle’s prior written approval; (vii), you agree to make every reasonable effort to prevent unauthorized third parties from accessing the On Demand Service; and (viii) you acknowledge and agree that Oracle or its licensors retain all ownership and intellectual property rights (including all derivatives or improvements thereof) in the On Demand Service and the On Demand Materials.

2. Trial Services. You may order Trial Services for the On Demand Service, which you may use for trial, non-production purposes only. You may not use the Trial Services to provide or attend third party training on the content and/or functionality of the On Demand Service. The Trial Period will be thirty (30) days from the Effective Date of the Ordering Document. Upon lapse of the Trial Period, your usage rights shall terminate. If you decide to use any of the On Demand Service after the thirty (30) day Trial Period, you must purchase the On Demand Service from Oracle via a separate Ordering Document. The Trial Services provided for trial purposes are provided “as is” and Oracle does not provide technical support or offer any warranties for these services.

3. Your Data. Oracle will treat any data provided by you that resides in your On Demand Service environment (“Your Data”) as confidential in accordance with Section 12. You acknowledge and agree that Your Data may be transferred or stored outside of the country or other jurisdiction where you and your Users are located, such as in connection with the provision of Customer Care Services. In addition, you acknowledge and agree that it is your obligation to inform third parties of the use, processing, or transfer of Your Data and to ensure that such third parties have given their consent to such use, processing, and transfer as required by all applicable data protection legislation.  You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Your Data. Oracle’s practices concerning the privacy and security of Your Data in connection with the On Demand Service is set forth in the Oracle’s Services Privacy Policy document available at http://www.oracle.com/html/privacy_hosted.html and Oracle’s CRM On Demand Security Practices document available at https://metalink3.oracle.com/od/faces/secure/km/DocumentDisplay.jspx?id=560218.1 respectively. Oracle shall have the right to modify these documents at any time in its sole discretion; however, by any such modification, Oracle will not materially reduce the level of protection afforded Your Data by these policies for the period for which you have paid for the On Demand Service.

4. Billing and Payment. You agree to pay in advance for all products and services ordered under the Agreement except as set forth in an Ordering Document. All fees due under the Agreement are non-cancelable and the sums paid nonrefundable, except as otherwise specified in Sections 8 and 11 of the Agreement. Oracle’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed on an Ordering Document. You will reimburse Oracle for reasonable expenses related to providing the Services. You will provide Oracle with valid and updated credit card or approved purchase order information and complete and accurate billing and contact information. If you provide credit card information to Oracle, you authorize Oracle to bill such credit card (a) at the time that you order any products or services, for all products and services set forth in the Ordering Document, and (b) at the time of any renewal, for the amount charged for any renewal Subscription Term(s) as set forth in Section 5. If Oracle, in its discretion, permits you to make payment using a method other than a credit card, Oracle will invoice you at the time of the initial Ordering Document and approximately one month in advance of the start of any renewal or subsequent billing period. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.

5. Term and Termination. This User Agreement is valid for the Ordering Document in which this User Agreement is incorporated by reference. The term of the On Demand Service or Services set forth in the Ordering Document hereunder shall commence upon the date of enablement of the On Demand Service (as identified in Oracle’s first invoice after execution of such Ordering Document), or as otherwise set forth in such Ordering Document, and shall continue for the period of time set forth in such Ordering Document (the “Subscription Term”). All fees for additional users for the On Demand Service set forth in the initial Ordering Document (“Additional Subscriptions”) will be billed in whole month increments, including Additional Subscriptions implemented in the middle of an existing subscription month. Additional Subscriptions shall expire at the end of the Subscription Term set forth in the initial Ordering Document issued by Oracle. Except as otherwise provided in an Ordering Document issued by Oracle, On Demand Service subscriptions may be renewed under Oracle’s then-current applicable policies and terms, subject to Oracle’s acceptance and your payment of fees for such On Demand Service subscriptions.  In the event of any material breach of the Agreement by either party, the non-breaching party shall have the right to terminate the applicable Ordering Document for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach in detail. In addition, Oracle may immediately suspend your password, account, and access to or use of the On Demand Service, (i) during such thirty (30) day cure period if the material breach involves your failure to make payment due to Oracle under the Agreement which you do not cure within the first ten (10) days of such 30 day cure period, or (ii) if you violate any provision within Section 1 or Section 15 of this User Agreement. Any suspension by Oracle of the On Demand Service under the preceding sentence shall not excuse you from your obligation to make payment(s) under the Agreement. Upon any termination of the Ordering Document, your right to access and use the On Demand Service and the Services specified in the Ordering Document (including the On Demand Materials) shall terminate. You must pay within thirty (30) days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for services received under the Ordering Document plus related taxes and expenses. At your request, within sixty (60) days of termination of the Ordering Document, Oracle will permit you to access the On Demand Service solely to the extent necessary for you to retrieve a file of Your Data then in Oracle’s possession. You agree and acknowledge that Oracle has no obligation to retain Your Data and that Your Data may be irretrievably deleted after ninety (90) days following the termination of the Ordering Document or if your account is thirty (30) days or more past due. The following provisions shall survive any termination of this User Agreement: Section 5, 9, 10, 12, 15 and 21.

6. Third Party Web Sites. If you enter into correspondence with, access the website content of, purchase goods or services from, or participate in promotions of advertisers, sponsors or any party other than Oracle, through the On Demand Service and/or through any software program used in conjunction with the On Demand Service, any such activity, and any terms, conditions, warranties or representations associated with such activity, is done solely at your own discretion and risk and is governed solely by the terms between you and the applicable third party. You should refer to the policies posted by third-party websites regarding privacy and other topics before you access or use such websites. Oracle shall have no liability or obligation for, and does not endorse or accept any responsibility for, the contents or use of third party web sites or any transactions completed with third parties. Oracle may provide such links and/or access to third-party website content only as a convenience, and the inclusion of any link or provision of access does not imply endorsement by Oracle of the linked or otherwise accessible web site, notwithstanding the inclusion on such site of the trademarks of Oracle or its subcontractors.

7. Customer Care Services. As part of the On Demand Service, Oracle will provide you with Customer Care Services under Oracle’s Customer Care Services Policies in effect at the time such Customer Care Services are provided. You may access the current version of Oracle’s Customer Care Services Policies at http://www.crmondemand.com/customercarepolicy. Oracle shall have the right to modify the Customer Care Services Policies at any time in its sole discretion; however, by any such modification, Oracle will not materially reduce the level of Customer Care Services provided to you for the period for which you have paid for such services.

8. Representations, Warranties & Exclusive Remedy. Oracle warrants that (a) the On Demand Service will perform substantially in accordance with its online documentation under normal use, and (b) the Services will be provided in a manner consistent with generally accepted industry standards. You must notify Oracle of any warranty deficiencies within 30 days from performance of the relevant On Demand Service and/or Services in order to receive warranty remedies.  For any breach of the express warranties set forth in clauses (a) and (b) above, your exclusive remedy shall be the reperformance or correction of the deficient On Demand Service and/or Services, as applicable, and if Oracle is unable to reperform or correct such deficient On Demand Service and/or Services as warranted, you shall be entitled to end such deficient On Demand Service and or Services and recover the portion of the fees you paid to Oracle for such deficient On Demand Service and/or Services, and such refund shall be Oracle’s entire liability.

9. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8 ABOVE, ORACLE AND DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE ON DEMAND SERVICE, THE ON DEMAND MATERIALS, AND THE SERVICES INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUALITY OF SERVICE. ORACLE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE ON DEMAND SERVICE, THE ON DEMAND MATERIALS, OR THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE ON DEMAND SERVICE, THE ON DEMAND MATERIALS, OR THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ORACLE DOES NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE ON DEMAND SERVICE OR ON DEMAND MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE ON DEMAND SERVICE WILL MEET YOUR REQUIREMENTS.YOU ACKNOWLEDGE THAT ORACLE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE ON DEMAND SERVICE AND ON DEMAND MATERIALS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ORACLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY ORACLE, THE ON DEMAND SERVICE, THE SERVICES, AND THE ON DEMAND MATERIALS ARE PROVIDED TO YOU ON AN “AS IS” BASIS.

10. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE ON DEMAND SERVICE, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHERWISE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ORACLE FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO ORACLE FOR THE ON DEMAND SERVICE, ON DEMAND MATERIALS, OR SERVICES UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND IF SUCH LIABILITY RESULTS FROM YOUR USE OF A PARTICULAR PORTION OF THE ON DEMAND SERVICE, ON DEMAND MATERIALS, OR SERVICES UNDER THE AGREEMENT, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID TO ORACLE FOR THE DEFICIENT PORTION OF THE ON DEMAND SERVICE, ON DEMAND MATERIALS, OR SERVICES GIVING RISE TO THE LIABILITY. THE LIMITATION OF ORACLE’S LIABILITY SET FORTH IN THE PRIOR SENTENCE SHALL NOT APPLY TO THE INDEMNITY OBLIGATIONS SET FORTH IN THIS USER AGREEMENT. Certain jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

11. Indemnities. If a third party makes a claim against either you or Oracle (“Recipient” which may refer to you or Oracle depending upon which party received the Material), that any information, design, specification, instruction, software, data, or material (“Material”) furnished by either you or Oracle (“Provider” which may refer to you or Oracle depending on which party provided the Material), and used by the Recipient infringes the third party’s intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by a court to the third party claiming infringement or any settlement agreed to by the Provider, if the Recipient does the following:

• notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
• gives the Provider sole control of the defense and any settlement negotiations; and
• gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If you are the Provider and such return materially affects Oracle’s ability to meet its obligations under the relevant Ordering Document, then Oracle may, at its option and upon 30 days prior written notice, terminate the Ordering Document. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or external source that is accessible to you within or from the On Demand Service (e.g., a third party We page accessed via a hyperlink).  Oracle will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Oracle. Oracle will not indemnify you for infringement caused by your actions against any third party if the Materials as delivered to you and used in accordance with the terms of the Agreement would not otherwise infringe any third party intellectual property rights. Oracle will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of this User Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of this User Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.

12. Confidential Information. Each party may have access to information that is confidential to the other party (“Confidential Information”). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information of Oracle shall include the software programs provided as part of the On Demand Service and the On Demand Materials. Confidential Information of yours shall include Your Data. Oracle will protect the confidentiality of Your Data in accordance with Oracle’s CRM On Demand Security Practices document available at https://metalink3.oracle.com/od/faces/secure/km/DocumentDisplay.jspx?id=560218.1. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure or; (iv) is independently developed by the other party without reference to the other party’s Confidential Information.   The parties agree to hold each other’s Confidential Information in confidence for a period of three (3) years from the date of disclosure. You acknowledge and agree that (1) nothing shall prevent either party from disclosing the terms or pricing under the Agreement in any legal proceeding arising from or in connection with the Agreement or disclosing the information to a governmental entity as required by law, and (2) Oracle may disclose your Confidential Information to its Third Party Providers to the extent necessary to provide products or services under the Agreement. Further, Oracle may identify you on its Oracle CRM On Demand customer lists and in its marketing and advertising materials, and announce that you are a customer of the On Demand Service, and reproduce your company name, logo, trademark, trade name, service mark, or other commercial designations in connection therewith.

13. Your Responsibilities. You will ensure that any use of the On Demand Service and Services by you and your Users is in accordance with the terms and conditions of the Agreement, and you shall be responsible for any breach by any User of such terms and conditions. In addition, you will obtain any consents required for Oracle and its agents and contractors to perform the On Demand Service and Services under the Agreement. You are responsible for ensuring that your network and systems comply with specifications that Oracle provides. Oracle is not responsible for your network connections or for conditions or problems arising from or related to your network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the internet. Oracle’s performance of its obligations under the Agreement is dependent on your timely provision of assistance, cooperation, and complete and accurate information from your officers, agents and employees.

14. Notices. Oracle may give notice applicable to Oracle’s general On Demand Service customer base by means of a general notice on the On Demand Service portal and notices specific to you by electronic mail to your e-mail address on record in Oracle’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Oracle’s account information. If you have a dispute with Oracle or you wish to provide a notice under the Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Oracle USA, Inc., 500 Oracle Parkway, Redwood City, California, United States, 94065, Attention: General Counsel, Legal Department.

15. Restrictions on Use.  You agree not to use or permit use of the On Demand Service or the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition, except as expressly permitted in an Ordering Document, you may not use monitoring tools, including automated user interfaces and webservice calls to the On Demand Service portal, that directly or indirectly seek to measure the availability of any application or feature within the On Demand Service. In addition to any other rights afforded under the Agreement, Oracle reserves the right to remove or disable access to any material that violates the foregoing restrictions. Oracle shall have no liability to you in the event that Oracle takes such action. You agree to defend and indemnify Oracle against any claim arising out of a violation of your obligations under this section.

16. Verification. At Oracle’s written request, but not more frequently than annually, you shall furnish Oracle with a document signed by your authorized representative verifying that the On Demand Service is being used pursuant to the provisions of this User Agreement and the applicable Ordering Document. You agree to provide such information and documents reasonably requested by Oracle with respect to your use of, and payment of fees for, the On Demand Service and Services. If the verification described in this section reveals that you have underpaid fees to Oracle, you shall promptly pay to Oracle such fees at the prices set forth in the applicable Ordering Document. You are responsible for implementing reasonable means to monitor your compliance with the terms of the Agreement.

17. Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the On Demand Service, the Services, the On Demand Materials and any services deliverables. You agree that such export control laws govern your use of the On Demand Service, the Services, the On Demand Materials and any services deliverables (including technical data), and you agree to comply with all export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

18. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel unperformed services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the On Demand Service and/or Services.

19. Use of Tools. Oracle may use tools, scripts, software, and utilities (collectively, the “Tools”) to review and administer the On Demand Service, and to help resolve your Oracle service requests. The Tools will not collect, report or store any production data residing in your production On Demand Service environment, except as necessary to troubleshoot service requests or other problems in the On Demand Service. Data collected by the Tools (excluding production data) may also be used to assist in managing Oracle’s product and service portfolio and for license management.

20. Statistical Information. Oracle may compile statistical and performance information related to the provision of the On Demand Service or the Services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your Confidential Information. Oracle retains all intellectual property rights in such information.

21. General provisions. The Agreement is governed by the substantive and procedural laws of California law and controlling U.S. federal law and the Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to the Agreement. You and Oracle agree to submit to the exclusive jurisdiction pf and venue in, the courts of San Francisco, San Mateo, or Santa Clara counties in California in any dispute arising out of or relating to the Agreement. This User Agreement and the information which is incorporated into this User Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the Ordering Document, represents the complete agreement and the parties’ entire understanding relating to the On Demand Service, the Services and the On Demand Materials, and supersedes all prior or contemporaneous, agreements or representations, written or oral, regarding such services and materials. . The exchange of a fully executed Ordering Document by fax shall be sufficient to bind the parties to the terms and conditions of this User Agreement and Ordering Document. The terms and conditions of the Agreement may be amended only by written agreement of the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Oracle and you as a result of the Agreement or use of the On Demand Service or Services. You may not assign the Agreement without the prior written approval of Oracle. Any purported assignment in violation of this section shall be void. Oracle reserves the right to provide some or all of the On Demand Service, On Demand Materials, or Services from locations, and/or through use of agents or contractors, worldwide. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of Oracle’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued. Any rights not expressly granted herein are reserved by Oracle.

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