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; © 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 © 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.