MetaMind user agreement

This User Agreement (this “Agreement”) applies to all users of the Service (collectively or individually “Users”).

BEFORE USING THE SERVICE, PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON “ACCEPT”, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE PROVISIONS OF SECTION 22 UNDER WHICH YOU AGREE TO ARBITRATE CERTAIN CLAIMS INSTEAD OF GOING TO COURT AND AGREE NOT TO BRING OR PARTICIPATE IN CLASS ACTIONS CLAIMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN PLEASE DO NOT CLICK “ACCEPT,” IN WHICH CASE YOU WILL NOT BE ABLE TO USE THE SERVICE.

IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE REQUISITE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS OUR SERVICES THROUGH SUCH ENTITY’S ACCOUNT TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT.

NOTE TO KIDS under 13 years of age:

The Service is not FOR persons under the age of 13. If you are under 13 years of age, then please do not use the Service. Talk to your parents about what sites are appropriate for you.

The applicable Privacy Policy, found at http://www.metamind.io, is hereby incorporated into this Agreement. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.

1. How It Works; Definitions

Users can submit data to the Service (“User Data”) that has been tagged as belonging to one or more categories for purposes of training the Service to recognize patterns associated with such category classifications and generate a corresponding classification algorithm (a “Classifier”) which is intended to classify subsequently submitted un-tagged User Data as either falling or not falling within that category (such functionality, “Classification”). Once a Classifier is generated, the User may send requests for Classification by such Classifier to the Service (a “Call”).

2. Use of Service

Subject to all terms and conditions of this Agreement and your timely payment of all applicable fees (if any), you shall have the right to access and use the Service in accordance with the functionality, features and limitations (including with respect to the maximum daily and monthly API Calls you may make) applicable to your account type for purposes of: (i) uploading User Data for purposes of training a new Classifier or updating an existing Classifier you previously generated; (ii) sending Calls to the Service and receiving corresponding responses, in each case in the manner enabled by salesforce.com, inc. and/or its affiliate(s) (collectively and hereafter, “Salesforce”) and in accordance with all applicable documentation. The features, functionality and limitations of the Service are subject to change from time to time, provided that that there will be no material degradation in features to any paid Service account. The functionality, features and limitations applicable to versions of the Service made available free of charge are subject to change at any time and without notice. You are solely responsible (at your own expense) for ensuring that you have all adequate hardware, software and Internet access service necessary for use of the Service. When using the Service, you will be subject to any additional posted terms, guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into this Agreement.

3. API

The Service includes an application programming interface through which a User can send Calls and receive corresponding responses from the Service (the “API”). Any use of the API must be in accordance with all applicable Guidelines made available by Salesforce. You may use the API to integrate Classification functionality provided by Classifiers you have generated into a product or service offering, provided that: (i) you own substantially all other intellectual property rights in and to such product or service, other than off-the-shelf hardware and software components; (ii) the product or service offering is made available under your branding; and (iii) the Classification functionality is a non-separable component of such product or service and Classification constitutes a minority of the overall features and functionality provided by such product or service. You are solely responsible at all times for any activities occurring through the API through a key or identifier issued to you by Salesforce (an “API Key”), and you agree not to share such key or identifier with any third party.

4. Restrictions

You have no rights or licenses with respect to the Service except as expressly provided in this Agreement. Without limiting the generality of the foregoing, you may not: (i) attempt to copy or modify the Service; (ii) provide an API Key to any third party; (iii) distribute, rent, lease, lend, sublicense, transfer or make access to the Service available to any third party; (iv) decompile, reverse engineer, or disassemble, or otherwise attempt to discover the source code for the Service; (v) use any key to access the Service other than an API Key or attempt to use any feature or functionality of the Service other than the Classification functionality; (vi) disseminate performance information or analysis (including benchmarks) relating to the Service or conduct any load, performance or vulnerability testing of the Service; or (vii) use or permit the use of the Service in connection with any product or service other than to the extent expressly authorized in Section 3.

If you use the Service, Salesforce may make available certain images to you ("Provided Images"), which are licensed from a third party, as part of the Service. You agree that you will only use the Provided Images in connection with the Service, and you agree that you will not: modify, alter, create derivative works from, sell, sublicense, transfer, assign, or otherwise distribute the Provided Images to any third party.

5. Availability – Free Account

To the extent you use a free Service account, Salesforce makes no representation or warranty to you of any kind regarding the availability of the Service and Section 6 does not apply.

6. Availability – Paid Account

To the extent you use a paid Service account, this Section 6 applies. Subject to all terms and conditions of this Agreement, Salesforce shall maintain availability of the Service to receive Calls and send a corresponding response of at least 99.99% on a monthly basis, as reasonably calculated by Salesforce, other than unavailability caused by an Excluded Reason. “Excluded Reasons” are: (i) malfunction or failure of equipment, software or services not directly operated by Salesforce; (ii) scheduled or emergency maintenance and update procedures or repairs; (iii) any of your acts or omissions or acts or omissions of any person acting on your behalf; and (iv) and causes beyond the control of Salesforce, including without limitation interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. In the event that the availability of the Service due to cases other than Excluded Reasons in any month hereunder (“Monthly Uptime Percentage”) is less than the below-specified percentages, then, as your sole remedy and Salesforce’s exclusive liability, Salesforce shall provide a credit against fees payable hereunder (“Monthly Uptime Credit”). If the Monthly Uptime Percentage is: (a) less than 99.99%, but greater than 97.0%, the Monthly Uptime Credit shall be 10% of the cost of the service plan for which you were registered at the beginning of the applicable month for the subsequent month hereunder; (b) less than 97.0%, but greater than 95.0%, the Monthly Uptime Credit shall be 25% of the cost of the service plan for which you were registered at the beginning of the applicable month for the subsequent month hereunder; and (c) less than 95.0%, one month of Services shall be added to the end of your billing cycle, at no charge to you. In the event your Monthly Uptime Percentage is less than 90.0%, you shall have the option to, in lieu of the free month credit in subsection (c) of the immediately preceding sentence, terminate your paid Service account upon seven (7) days prior written notice to Salesforce. In order to receive any of the foregoing credits, you must make a request to Salesforce within ten (10) days of the last day of the month in which the unavailability occurred. Salesforce’s measurements of availability shall govern any determination of whether availability of the Service was 99.99% or not. Any remaining credits at the time of expiration or termination of this Agreement shall be forfeit. For the avoidance of doubt, Salesforce makes no guarantee of any kind regarding your ability to successfully send a Call or to receive or use a response to a Call that is sent by the Service.

7. Support

To the extent you use a paid Service account, Salesforce shall provide you with commercially reasonable technical support via e-mail during Salesforce’s normal business hours. Salesforce is under no obligation to provide support in relation to free Service accounts.

8. Payment

By signing up for a paid Service account and providing your payment information, you agree to pay us the recurring and/or nonrecurring fees as displayed to you at the time you create your account and as may be modified from time to time as described in this Agreement, as well as any other fees you expressly choose to incur in connection with your use of the Service. If you upgrade your account type, you will be charged the price difference on a pro-rated basis for then then-current billing period. If you downgrade your account, the downgrade will take effect at the start of the next billing period. You acknowledge and agree that the payment instrument provided by you will be automatically charged the fees you incur in connection with your use of the Service, and represent and warrant that you have all necessary rights relating to such payment instrument to authorize Salesforce to make such charges. Your use of the Service may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. Recurring fees shall be charged on each applicable anniversary (e.g., monthly, quarterly, etc.) of the date of your account creation. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by us at least fifteen (15) days in advance of the payment date for which the modification would be effective. Your continued use of the Service following such notice and through the payment date constitutes your agreement to such modified fees. You may at any time cancel your account as set forth below if you do not agree to any modified fees. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by Salesforce from time to time, as indicated at the time of payment) and are non-refundable.

9. Ownership; Proprietary Rights

As between you and Salesforce, Salesforce is the owner of all right, title and interest (including all intellectual property rights) in and to the Service and all components thereof, and any software, technology, materials and information owned by Salesforce prior to the date of this Agreement or created, acquired, authored, developed, conceived or reduced to practice by Salesforce after the date of this Agreement, whether alone or jointly with others (“Salesforce Materials”). For clarity, Salesforce Materials does not include User Data. As between you and Salesforce, you own all right, title and interest (including all intellectual property rights) in and to the User Data. You are not required to provide any ideas, feedback or suggestions regarding any of Salesforce’s products or services (“Feedback”) to Salesforce. To the extent you do provide any Feedback to Salesforce, you agree that Salesforce may use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback on a perpetual, non-exclusive basis and without payment of any royalties or other consideration to you.

10. Confidentiality

10.1 “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within fifteen (15) days of the disclosure. In the case of Salesforce, Confidential Information includes the Service, any documentation relating to the API, the technology, methods and processes used by Salesforce to perform Classification and generate Classifiers, and any specifications or documentation relating to any of the foregoing. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.

10.2 Each party (the “receiving party”) shall not use the other party’s (the “disclosing party”) Confidential Information except in furtherance of this Agreement, as authorized under this Agreement or as otherwise authorized by the disclosing party. Each receiving party shall not disclose the disclosing party’s Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information hereunder, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement to current or prospective investors in or acquirers of such party.

10.3 You and your affiliates shall not prepare, file, prosecute or enforce any patents or patent applications based upon or using the Service or any Confidential Information of Salesforce. If, notwithstanding this Section 10.3, you or any of its affiliates prepares, files, prosecutes or enforces any patents or patent applications in breach of the foregoing, then Salesforce shall have (and you hereby grant to Salesforce) a paid-up, royalty-free, worldwide license under such patents to make, have made, use, sell, offer for sale, import, otherwise exploit and sublicense; provided, however, that this shall not be construed as limiting any other rights or remedies available to Salesforce for your breach of this Section 10.3. For the avoidance of doubt, none of the foregoing implicates any patent or patent application covering any technology, product or service so long as such patent or patent application does not include any claims referencing the Service or Salesforce Confidential Information.

11. User Data

11.1 You shall be solely responsible for your own User Data and the consequences of uploading them or publishing it. You represent and warrant that you own the User Data without restriction, or you have all licenses, rights, consents, and permissions with respect to all User Data necessary to use and authorize Salesforce to use User Data in the manner contemplated by Salesforce and this Agreement. Salesforce reserves the right to limit the amount of data stored in free Service accounts.

11.2 By submitting User Data to Salesforce, you hereby grant Salesforce a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable, and transferable license to (i) use, reproduce and analyze the User Data for purposes of operating the Service; (ii) use or disclose User Data as may be required by law or legal process, or where Salesforce determines such use or disclosure to be reasonably necessary to prevent harm to any individual or entity; and (iii) use, reproduce and analyze User Data internally for purposes of developing, improving and testing its algorithms, models and techniques.

11.3 In connection with User Data and any other transmission of material facilitated by the Service, you agree that you will not submit or transmit material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate. If notified by a user or a content owner of User Data that allegedly does not conform to this Agreement, Salesforce may investigate the allegation and determine in good faith and in its sole discretion whether to remove the User Data, which it reserves the right to do at any time. Salesforce may at any time remove any User Data that in the sole judgment of Salesforce violates this Agreement, and may refer any violation of law suspected by Salesforce (in its sole discretion) to appropriate authorities.

11.4 You will not submit or transmit any User Data or any other material: (i) which constitutes personally identifiable information, healthcare-related information (including without limitation “protected health information” under the Health Insurance Portability and Accountability Act of 1996) or any consumer financial information (including information governed by the Gramm-Leach-Bliley Act); or (ii) which would reasonably be considered to be sensitive or where the loss or unauthorized use thereof could reasonably be expected to result in any loss, damage or liability to any person or entity. If you have a lawful need for use of such material in connection with the Service, please contact Salesforce.

11.5 You acknowledge that you are solely responsible for all User Data and any other content and material that you submit to the Service. If at any time, Salesforce chooses, in its sole discretion, to monitor any such items, Salesforce nonetheless assumes no responsibility for such items and no responsibility for the conduct of the User submitting any such items. If you are a copyright holder and believe that materials in which you own the copyright have been posted on the Service without your permission, you may provide Salesforce with a “takedown notice” pursuant to the Digital Millennium Copyright Act pursuant to Salesforce’s DMCA policy, which can be accessed by visiting http://www.salesforce.com/company/legal/intellectual.jsp. Salesforce shall not have any liability of any kind for any unauthorized access to or use of User Data that does not directly result from the gross negligence or willful misconduct of Salesforce.

12. Prohibited Uses

12.1 As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. Use of the Service from territories where such use is illegal is strictly prohibited. You are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, or privacy.

12.2 You may not intentionally interfere with or damage the operation of the Service or any other customer’s use of it by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service, or features that enforce limitations on the use of the Service. You may not attempt to gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service.

13. Account Information

You agree that the information you provide to Salesforce in connection with your customer account will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you register you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password, you will immediately notify Salesforce. You may be liable for the losses incurred by Salesforce or others due to any unauthorized use of your account.

14. User Communications

Under this Agreement, you consent to receive communications from Salesforce electronically. We will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

15. Notice

Except as explicitly stated otherwise, legal notices shall be served on Salesforce national registered agent or to the email address you provide to Salesforce during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration or purchase process. In such case, notice shall be deemed given three days after the date of mailing.

16. Changes

Salesforce may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after Salesforce provides notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. If you do not want to agree to any Changes, your sole remedy is to cease use of the Service and terminate this Agreement and your Service account by written notice sent to Salesforce; in such event, you will receive a pro-rated refund covering amounts pre-paid by you (if any) for time periods following the effective date of termination.

17. Term; Termination

17.1 If you use a free Service account, this Agreement continues until terminated, and either you or Salesforce may terminate this Agreement for any reason or for no reason. You may effectuate such termination by notifying Salesforce that you wish to terminate your User account. Salesforce may effectuate such termination by written notice to you and/or by terminating your User account.

17.2 If you use a paid Service account: (i) this Agreement continues until terminated; (ii) either you or Salesforce may terminate this Agreement for any reason or for no reason upon sixty (60) days prior written notice; (iii) you may terminate in accordance with Section 6 upon the happening of the conditions stated in that subsection; and (iv) Salesforce may terminate this Agreement immediately in the event of your breach of this Agreement, in the event you cease to conduct business, become insolvent or become subject to bankruptcy or similar proceedings, or in the event Salesforce determines that continuing to provide the Service to you could expose Salesforce to regulatory or other legal action.

17.3 The Service is not a data backup tool and Salesforce reserves the right to promptly delete all User Data upon termination of this Agreement. Salesforce shall have no liability to you by reason of any termination of this Agreement as described herein.

18. Disclaimers; No Warranties

THE SERVICE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SALESFORCE, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. SALESFORCE, AND ITS SUPPLIERS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

19. High Risk Activities

YOU ACKNOWLEDGES THAT THE SERVICE (INCLUDING AND CLASSIFICATION FUNCTIONALITY PROVIDED BY THE SERVICE) IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH ERROR OR FAILURE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). SALESFORCE EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED GUARANTEE OF FITNESS FOR SUCH HIGH RISK ACTIVITIES.

20. Indemnification

You agree to indemnify and hold Salesforce and its affiliated companies, and each of their directors, officers and employees, harmless from any claims, suits, proceedings, damages, losses, liabilities, settlements, costs and expenses, including reasonable attorneys fees, arising out of or relating to your use or misuse of the service (including any use in connection with any High Risk Activities), breach of this Agreement or infringement or violation of the intellectual property rights, privacy rights or other rights of any third person or entity. Salesforce reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.

21. Limitation of Liability and Damages

UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL SALESFORCE OR ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RELATING TO THIS AGREEMENT (INCLUDING YOUR USE OF OR INABILITY TO USE THE SERVICE OR ANY OTHER INTERACTIONS WITH SALESFORCE RELATING TO THIS AGREEMENT), EVEN IF SALESFORCE OR A SALESFORCE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SALESFORCE OR ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS OR EMPLOYEES, HAVE LIABILITY TO YOU FOR ANY DAMAGES OF ANY KIND RELATING TO THIS AGREEMENT (INCLUDING YOUR USE OF OR INABILITY TO USE THE SERVICE OR ANY OTHER INTERACTIONS WITH SALESFORCE RELATING TO THIS AGREEMENT) EXCEEDING THE GREATER OF FIFTY U.S. DOLLARS AND THE TOTAL AMOUNTS PAID BY YOU TO SALESFORCE HEREUNDER DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT (E.G., WHETHER IN CONTRACT, TORT OR OTHERWISE) AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED FOR HEREIN.

22. Arbitration

22.1 Agreement to Arbitrate. This Section 22 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

22.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).

22.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section

  1. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.

22.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.

22.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.

22.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.

22.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.

22.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 22.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 22.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.

23. Claims

YOU AND SALESFORCE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

24. Miscellaneous

Salesforce may use your name and logo to indicate that you are a customer of Salesforce on websites owned or controlled by Salesforce and in marketing materials relating to Salesforce’s products and services. In addition, Salesforce may prepare and distribute a case study describing your use of the Service, subject to your prior review and approval of such case study, such approval not to be unreasonably withheld or delayed. You agree to provide reasonable information and cooperation in connection with the production of such case study at Salesforce’s request, including provision of one or more quotes from your senior technical executives for use in such case study. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.

You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to mandatory arbitration as set forth above in Section 22 shall be filed only in the state or federal courts in and for Santa Clara County, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Salesforce without restriction.

Sections 4, 5, 8 (with respect to accrued fees), 9, 10, 11, 12, 13, 14, 15, and 17 through 24 will survive any termination of this Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement or Guidelines made by Salesforce as set forth in Section 5 above.