SALESFUEL® TERMS & CONDITIONS
The following Terms and Conditions (including any applicable SalesFuel® order form these “Terms” or this “Agreement”) govern the licensing, use of, and subscription to SalesFuel® COACH™, SalesFuel® HIRE™, SalesFuel® LOCAL™ and AdMall® products, and all other software, services, applications, or products (a “Product”) provided by SalesFuel, Inc. (“SalesFuel®”). By submitting the applicable license or subscription agreement or application to subscribe to one or more Products and/or the Network Applications (the “Subscription Agreement”), Subscriber irrevocably agrees to be bound by these Terms. These Terms and Conditions are deemed to be incorporated into and a part of all Product licenses. Any purported terms and conditions provided by Subscriber or any third party other than SalesFuel® are void and of no force or effect. Do not subscribe to any Product if you do not agree with these Terms. SalesFuel® and Subscriber may each be referred to herein as a “Party” and collectively as the “Parties.”

1. DEFINITIONS.
a. “Licensed Information” means all web sites, information, databases, software, technology, methodologies, images, audio, video and all accompanying materials provided by, as part of, or through a Product to Subscriber, but excluding data owned and entered by Subscriber, which shall remain the property of Subscriber.
b. “Subscriber” means the individual or entity subscribing to a Product, as identified in the applicable Subscription Agreement.
c. “Network Applications” means any of SalesFuel®’s Product applications, and any third party components.
d. “SalesFuel® Competitor” means all persons or entities that provide services to sales managers and media advertising sales departments, their officers, agents or employees.

2. GRANT OF LICENSE. SalesFuel® grants the following licenses (“Licenses”) to Subscriber subject to the terms and limitations of this Agreement:
a. Subscribers of Products. Subject to Section 2.b., SalesFuel® grants Subscriber a nonexclusive, limited and nontransferable license to the Licensed Information only for internal use by Subscriber. SalesFuel® grants to Subscriber the right to disclose passwords and provide access to the Product to such of its full-time employees as permitted by the contract for the Product; provided however that Subscriber may not disclose passwords or provide access to any person who is an owner, representative, officer, independent contractor, agent or employee of a SalesFuel® Competitor.
b. Subscribers of Network Applications. Notwithstanding Section 2.a, if the Product for which Subscriber subscribes is AdMall® or any derivation or related Product to AdMall®, then, provided that Subscriber maintains simultaneously any separate licenses required by SalesFuel® for the AdMall® Consultative Sales and Relationship Marketing Agreement, SalesFuel® grants Subscriber a nonexclusive, limited and nontransferable license to use the Network Applications selected by Subscriber in the Subscription Agreement and the right to reproduce and distribute the Licensed Information solely for the purpose of obtaining and managing advertising sales and sales communications. Subscriber agrees it is prohibited from using Network Applications and/or accompanying materials for any other companies other than specifically listed in the Subscription Agreement or this Agreement. SalesFuel® grants the Subscriber the right to disclose passwords and provide access to Network Applications to each full-time employee who is not a representative, officer, subcontractor, agent or employee of a SalesFuel® Competitor.
c. Limitations. The Licenses granted hereby shall be in effect only for the term set forth Page One of the Subscription Agreement. Upon expiration of the term, the Licenses shall automatically expire without notice to Subscriber or further action by SalesFuel®. Subscriber may not assign or grant any sublicense in or to the Licensed Information. The grant of the Licenses is conditioned on Subscriber’s continuous compliance with these Terms, and all license limitations and restrictions described in this Agreement and payment to SalesFuel® of all applicable license fees. Upon any failure to fully comply with these Terms, or failure to timely and fully pay such license fees, all Licenses granted will automatically and immediately expire without further action or notice by SalesFuel®.

3. INTELLECTUAL PROPERTY RIGHTS. All right, title and interest in the Products and Licensed Information, in all languages, formats and media throughout the world, including all copyrights and other intellectual property rights, are and will continue to be the sole and exclusive property of SalesFuel, Inc. Subscriber acknowledges SalesFuel®, SalesFuel® HIRE™, SalesFuel® LOCAL™, Persona+™, 10dency™, 10dencies™, Adaptive Sales Coaching™, QuickCoaching™, AdMall®, AdMall® for Agencies™, Co-op Processor™, Sell Smarter®, and AudienceSCAN® and Strategist™ are trademarks of SalesFuel® (along with other trademarks added by SalesFuel® from time to time). Subscriber must at all times give attribution to SalesFuel® as the owner of its intellectual property upon any publication of the same by Subscriber, provided that the foregoing shall not be deemed to grant the right or a license to publish any SalesFuel® intellectual property, which is subject to Section 4 hereof.

4. CONFIDENTIAL INFORMATION. Subscriber agrees that, except as otherwise provided herein, neither it, nor its employees or other permitted users, shall provide or permit the use of, transfer or disclose SalesFuel®’s Confidential Information to any person or entity (including but not limited to any SalesFuel® Competitors) without the specific, written consent of SalesFuel®. “Confidential Information” includes without limitation, all information and data gleaned from use of any products or through this subscription and the licenses granted hereunder, information designated by SalesFuel® as being confidential, proprietary technology, business or marketing plans, customer lists, log-in credentials and passwords, and the Licensed Information. “Confidential Information” does not include (a) information that was in the possession of Subscriber prior to its receipt from SalesFuel® or was independently developed by employees or representatives of Subscriber who had no exposure to SalesFuel®’s Confidential Information, and (b) information that is or becomes available in the public domain through publication or otherwise other than by a breach of this agreement by Subscriber. Confidential Information shall not be made accessible to third parties who are not authorized to access and use such Confidential Information. SalesFuel®’s Confidential Information may not be used for the creation, development or maintenance of any databases for the benefit or use of Subscriber, nor a similar product or service to any Product, for sale or disclosure to or use by Subscriber or any unauthorized third party. Subscriber shall not create, develop, design, maintain, or service, or directly or indirectly assist, facilitate, finance, or otherwise aid any other person or entity to develop, design, maintain, or service, any database or similar product or service to any Product. Subscriber acknowledges that SalesFuel® is entitled to injunctive and other equitable relief upon a breach or threatened breach of the provisions of this section. SUBSCRIBER IS RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF AND CONTROLLING THE USE OF ITS USER ID AND PASSWORD. These confidentiality provisions shall not terminate at the conclusion of these Terms, but shall remain in effect for so long as the Confidential Information remains confidential. These Terms do not prohibit Subscriber from disclosing SalesFuel®’s Confidential Information to any government agency or court of competent jurisdiction to the extent required by subpoena or court order; provided, however, if Subscriber at any time is required to so disclose any SalesFuel® Confidential Information, Subscriber must promptly notify SalesFuel® of such required disclosure prior to the disclosure, whenever possible, so that SalesFuel® may consider or seek an appropriate protective order.

5. SUBSCRIBER’S RESPONSIBILITIES. Subscriber is responsible for, and releases and discharges SalesFuel® from all liability arising from, all activity that takes place from and through Subscriber’s account. In using the Products, Subscriber, including any authorized user accessing Subscriber’s account, may not (a) engage in or facilitate unlawful conduct; (b) infringe SalesFuel®’s or any third party’s copyrights, patents, trademarks, trade secrets or other proprietary rights or rights of publicity or privacy, including, without limitation, by uploading or storing any data or materials on the Network or Applications that Subscriber does not own or have an express right to use; or by reverse engineering or deconstructing any of the Products or Licensed Information; (c) divulge information that Subscriber does not have a right to divulge, whether due to a contractual, fiduciary, or privileged relationship or otherwise; (d) violate any state, federal, or international law, statute, ordinance or regulation (including without limitation those governing export controls, consumer protection, unfair competition, anti-discrimination or false advertising); (e) instruct, aid, abet, or promote any illegal activity; (f) introduce, permit, facilitate, or suffer to be introduced, directly or indirectly, any viruses, “Trojan Horses,” “Worms,” “Time Bombs,” or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (g) use any unauthorized means to damage, disable, overburden, or impair SalesFuel®’s networks and computers; (h) use any means to data mine or scrape SalesFuel®’s databases or to harvest information about SalesFuel®’s end users and customers; and (i) violate any of these Terms. Subscriber bears sole responsibility for Subscriber’s own research and business decisions. SalesFuel® and its licensors shall not be liable for any decision made or action taken by Subscriber or others based upon reliance upon information or materials obtained through use of the Products or any Licensed Information.

6. ACCESS REQUIREMENTS. Subscriber must provide at its own expense the equipment and Internet connections that it will need to access and use the Products. Subscriber is solely responsible for ensuring that its computing equipment and network are compatible with SalesFuel®’s system requirements.

7. TERM. The Subscription Agreement term shall initially be one (1) year, and shall be automatically renewed for successive one (1) year terms on each anniversary date of subscription. These Terms shall run coterminous with the subscription term identified in the Subscription Agreement; provided, however, that the restrictions and conditions of Sections 3, 4, 5, 10, 13, 14, 15, 16, and 19 of this Agreement will survive any termination of this Agreement. Unless otherwise agreed to in writing by SalesFuel® and Subscriber, these Terms shall be automatically renewed to be co-terminous with any renewals or extensions of the Subscription Agreement, until Subscriber or SalesFuel® terminates this Agreement as specified in 8 below. Upon termination or expiration of the Term, any continuation of service shall be deemed to be on a month-to-month to month basis, and either SalesFuel® or Subscriber may terminate on 30 days notice.

8. TERMINATION. At any time following the completion of the initial subscription term, either Party may terminate the Subscription Agreement by notifying the other Party in writing not later than thirty (30) days prior to each annual renewal date. At any time after the effective date of this Agreement, either SalesFuel® or Subscriber may terminate the Subscription Agreement upon thirty (30) days’ prior written notice to the other if the other materially breaches the Subscription Agreement and does not fully cure such breach within such 30-day notice period. Upon termination of this Agreement for any reason, Subscriber agrees to certify in writing that it has not retained any copies of the Licensed Information in printed, electronic, or any other form.

9. PAYMENT. Subscriber must pay all monthly fees required by this Agreement or the Subscription Agreement in advance, on or before the first day of each and every month during the Subscription Term, irrespective of whether or not Subscriber has been provided with an invoice or statement. SalesFuel® may, but is not obligated to, send invoices to Subscriber. The failure of SalesFuel® to provide invoices shall not permit Subscriber to fail to make any payments required hereby which must be timely and fully paid in accordance with the foregoing sentence. Annual payments must be received by SalesFuel® within thirty (30) days after the billing date. All other payments shall be payable within thirty (30) days after receipt of an invoice from SalesFuel®.

10. PRICE. SalesFuel® pricing includes Price Assurance™ rate protection for the Subscription Term (including renewals). Price Assurance™ continues for so long as Subscribers are not in default and maintain continuous service. In the event of any termination or other interruption to the Subscription Term, new subscriptions will be subject to then current pricing.

11. SALES TAX. All subscription fees, activation fees and all other fees and costs payable by Subscriber under this Agreement and the Subscription Agreement will be exclusive of any applicable value added tax, excise tax, sales tax, and other taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Subscription, which SalesFuel® is required to collect from Subscriber, except as otherwise provided below. Subscriber will notify SalesFuel® if Subscriber holds a permit requiring or allowing Subscriber to pay any sales tax or similar tax directly to the proper fiscal authority. Upon such notification or if Subscriber delivers to SalesFuel® a multiple points of use exemption certificate (or similar instrument), SalesFuel® will not withhold any sales tax from Subscriber and Subscriber will remit the proper tax directly to the appropriate fiscal authority. If Subscriber holds any such permit or delivers to SalesFuel® a multiple points of use certificate (or similar instrument) or otherwise undertakes the responsibility to remit any sales tax to the appropriate fiscal authority directly, Subscriber will indemnify and hold SalesFuel® and SalesFuel®’s directors, offices, shareholders, employees, and other representatives harmless for any loss, liability, claim, or expense (including reasonable attorney’s fees) asserted against or suffered by SalesFuel® due to Subscriber’s failure to remit sales tax to the appropriate fiscal authority. SalesFuel® may, but is not required to, cooperate with Subscriber in allocating sales tax among multiple jurisdictions. Notwithstanding anything in this Agreement to the contrary, Subscriber will pay any applicable use taxes arising from the Subscription.

12. REPRESENTATIONS. Each Party represents and warrants that it has full company or individual power and/or authority to execute and deliver this Agreement and to perform its obligations hereunder, and that the person whose signature appears on the signature line of the Subscription Agreement is duly authorized to enter into this Agreement on behalf of the Party whom such person represents.

13. LIMITED WARRANTY. Throughout the term of this Agreement, SalesFuel® shall use commercially reasonable efforts to meet traffic demands of Subscriber and achieve a Ninety-eight percent (98%) server Uptime (as defined herein) for the Products during each calendar month (a “Period”), 24 hours per day, seven days every week. “Uptime” equals (a) the difference between total minutes in a Period, excluding scheduled maintenance and any events or circumstances which are outside of SalesFuel®’s reasonable control which result in downtime (“Total Time”), and minutes that the Product and/or the Licensed Information are not available for use, divided by (b) Total Time in the Period. SalesFuel® further represents that it has the necessary rights to convey the Products and Licensed Information as expressly set forth in this Agreement.

14. DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY GRANTED IN THIS AGREEMENT, SALESFUEL® PROVIDES THE PRODUCTS AND LICENSED INFORMATION WITH NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED. SALESFUEL® DOES NOT WARRANT THE ACCURACY, COMPLETENESS AND PERFORMANCE OF THE LICENSED INFORMATION OR PRODUCTS. SALESFUEL®, ITS CONTRIBUTORS, LICENSORS AND DISTRIBUTORS DISCLAIM IMPLIED WARRANTIES THAT THE PRODUCTS AND THE LICENSED INFORMATION ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, TIMELY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. SALESFUEL® DOES NOT GUARANTEE THAT THE PRODUCTS AND THE LICENSED INFORMATION WILL MEET SUBSCRIBER’S REQUIREMENTS, ARE ERROR-FREE, RELIABLE, WITHOUT INTERRUPTION, OR AVAILABLE AT ALL TIMES. SALESFUEL® DOES NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS AND THE LICENSED INFORMATION, INCLUDING ANY SUPPORT SERVICES, WILL BE EFFECTIVE, RELIABLE, ACCURATE OR MEET SUBSCRIBER’S REQUIREMENTS. SALESFUEL® DOES NOT REPRESENT OR WARRANT THAT SUBSCRIBER WILL BE ABLE TO ACCESS OR USE THE PRODUCTS OR LICENSED INFORMATION AT TIMES OR LOCATIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AN SALESFUEL® REPRESENTATIVE SHALL CREATE A WARRANTY.

15. INDEMNIFICATION. Except as otherwise provided below, each Party (the “Indemnifying Party”), at its own expense, will defend, indemnify, save and hold harmless the other Party (the “Indemnified Party”), the Indemnified Party’s affiliates, and their officers, directors, agents, and employees, from and against any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys’ fees (collectively, “Liabilities”), resulting from the Indemnifying Party’s breach of any material duty, covenant, representation, or warranty contained in this Agreement, except there shall be no obligation to indemnify, defend, save and hold harmless the Indemnified Party to the extent the Liabilities result from the negligence or knowing and willful misconduct of the Indemnified Party. The Indemnified Party agrees to (a) promptly notify the Indemnifying Party in writing of any indemnifiable claim, (b) give the Indemnifying Party the opportunity to defend or negotiate a settlement of any such claim at the Indemnifying Party’s expense, except that the Indemnifying Party shall not enter into any settlement that materially affects the Indemnified Party’s rights or business reputation without the Indemnified Party’s prior written approval, and (c) cooperate fully with the Indemnifying Party in defending or settling such claim at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification by the Indemnifying Party.

16. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY WHATSOEVER TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (COLLECTIVELY, “CONSEQUENTIAL DAMAGES”), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL EXPRESSLY INCLUDE, WITHOUT LIMITATION, ANY LIABILITIES OWING TO OR CLAIMS OF THIRD PARTIES PURSUANT TO INDEMNIFICATION OBLIGATIONS. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, AND ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE CLAIMING PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION, AMOUNTS DUE AND OWING TO SALESFUEL®, SHALL NOT BE CONSIDERED TO BE CONSEQUENTIAL DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL SALESFUEL®’S CUMULATIVE LIABILITY TO SUBSCRIBER EXCEED THE FEES PAID BY SUBSCRIBER UNDER THE SUBSCRIPTION AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.

17. DISPUTE RESOLUTION/ARBITRATION PROCEDURE. Except as provided herein, all disputes relating to this Contract or to Products in any way (“Dispute”) shall be resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), and judgment upon the award rendered in the arbitration may be entered in any court having jurisdiction. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. The arbitration shall be conducted and the award made in Franklin County, Ohio before a single arbitrator. If the AAA is unable to furnish a list of potential arbitrators, SalesFuel® shall supply Customer a list of at least five (5) such persons from which the arbitrator shall be selected by Customer. Any award shall be final and binding on the parties. The arbitrator shall include in the award the costs and attorneys’ fees incurred by the prevailing party in the arbitration. Notwithstanding the above, the arbitration provisions above shall not apply, at SalesFuel®’s sole option, including in circumstances in which Customer has already served a demand for arbitration upon SalesFuel®, to any one or more claims or actions against Customer by SalesFuel® in connection with collection of any amounts due SalesFuel® by Customer for Products or otherwise under this Contract, including but not limited to interest on such amounts and attorneys’ fees as provided above (“Excluded Actions”). SalesFuel® may at SalesFuel®’s option maintain any such Excluded Actions in any state or federal court in the State of Ohio described in Paragraph 17 or in any other court having jurisdiction over Customer, and the parties hereto irrevocably consent to the jurisdiction of such courts in connection with Excluded Action and agree that any such courts are a proper venue for any such Excluded Actions.

18. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to its conflicts of laws provisions. Subject to Section 16, Subscriber agrees that any disputes or claims that may arise hereunder or between the Parties will be resolved only by a state or federal court of competent jurisdiction located within Franklin County, State of Ohio, and that Subscriber agrees and submits to the exercise of exclusive personal jurisdiction of such courts for the purpose of litigating any such claim or action. Subscriber hereby waives any and all defenses of lack of personal or subject matter jurisdiction, improper venue, or forum non conveniens.

19. CHANGES TO SERVICES. SalesFuel® in its sole discretion may, but is not required to, modify, upgrade or discontinue any specific feature to any Product.

20. ASSIGNMENT. This Agreement is binding upon the Parties hereto and their respective successors and permitted assigns. Subscriber may not assign any of its obligations or rights under this Agreement without the express written consent of SalesFuel®, which may be unreasonably withheld, conditioned, or delayed. In the event of any approved assignment, Subscriber shall remain fully liable hereunder, jointly and severally with the assignee. As a condition of approving an assignment, SalesFuel® may require any successor to expressly assume all of the obligations under this Agreement, and Subscriber to reaffirm its ongoing joint and several obligations. SalesFuel® shall have the right to assign this Agreement, in whole or in part, and/or to subcontract its performance obligations hereunder, at any time and from time to time in its sole discretion; provided however, that such successor shall expressly assume all of SalesFuel®’s obligations under this Agreement.

21. MISCELLANEOUS. Waiver of any default or breach of this Agreement shall not constitute or be construed as a waiver of any other default or breach. Any matter arising under this Agreement that creates a right of action in either Party against the other or an obligation or undertaking that by its nature is required to be performed after the term of this Agreement, shall survive the termination or expiration of the term of this Agreement. All notices shall be in writing and shall be deemed to have been given on the date sent to the other Party, both by facsimile and by overnight courier with delivery acknowledged. Whenever possible, each provision in this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. This Agreement, including the Subscription Agreement, constitutes the entire agreement between Subscriber and SalesFuel® and supersedes all previous written or oral agreements. This Agreement may not be modified except in a writing signed by both Parties.