AGREEMENT BETWEEN USER AND SalesFusion
1.Terms of Service – Provided that Customer has paid all applicable fees (the “Fees”) as set forth in the Quote and Order Form (“Order”), Salesfusion (“Salesfusion”) will provide the following services to Customer with respect to the services, products, and applications described in the Order (collectively, the “Services”). These Terms & Conditions are incorporated by reference into the Order. Reference to “this Agreement” shall mean these Terms & Conditions, the Order, and all exhibit documents attached thereto or referenced therein.
a. Operation; Access. – Salesfusion will host and operate the Applications on computer servers accessible by Customer via the Internet. A “User” is defined as any member of the Customer that has been entered into the Salesfusion user administration table and for whom the Customer has paid the applicable fees. A User will have rights to access the Salesfusion SaaS application, the marketing dashboard via an external CRM, receive reports, and receive alerts. In order to access any of this information a User account will need to be established either by the external CRM sync or manually in the Salesfusion 360 user administration. The Order Form will govern the number of Users and cost, if any, for each User. A “Support User” is any User that will be permitted to request support from Salesfusion, by phone or email. Not all Users will have access to support and the Order Form will govern the number of Support Users. Support Users will be named Users and selected during the on-boarding process. The Order Form will govern the number of named Support Users. Customer shall be responsible for the maintenance of User Names and passwords used to access the Web Portal portion of Salesfusion360.com. If any User has been terminated or otherwise reassigned to a position within Customer’s organization in which such person will not be using the Applications, Customer shall be responsible for terminating access for that User.
b. Maintenance and Support. – Salesfusion may, from time to time, perform maintenance services on the Applications and related Salesfusion infrastructure as necessary including, without limitation, (i) updating the Applications to later releases, (ii) applying patches and fixes to the Applications, or (iii) updating or otherwise maintaining Salesfusion hardware and software infrastructure that supports the Applications (“Scheduled Maintenance”). Salesfusion shall use all reasonable efforts to perform the Scheduled Maintenance during off-peak hours (11:00 p.m. to 8:00 a.m. EST). Customer acknowledges and agrees that the performance of Scheduled Maintenance may cause the Applications to be temporarily unavailable. Salesfusion’s normal maintenance windows for application updates and server upgrades are on Saturdays between 6 AM and 9 AM Eastern time. Salesfusion will not notify the client of maintenance during those times as those times will be assumed maintenance windows. Salesfusion will make reasonable efforts to provide Customer with a 24 hour notice of scheduled and unscheduled maintenance, however, from time-to-time, Salesfusion may need to issue a mid-week patch. Salesfusion will use reasonable efforts to provide a 1-hour notice if a mid-week patch is necessary. Typically, mid-week patches results in a 3-5 minute down period, if at all.
c. Customer Support. – Salesfusion will provide a client support desk staffed with qualified Salesfusion personnel appropriately trained with respect to the features, functionalities and operation of the Applications (the “Support Desk”), to provide assistance and support for Customer’s use of the Applications. The Support Desk will be available from 3:00 a.m. to 8:00 p.m., Eastern Standard Time, Monday through Friday, except on Salesfusion regularly scheduled holidays. Salesfusion will use commercially reasonable efforts to respond to and resolve all Support Desk issues received from Support Users. With respect to problems that require the attention of third party software vendor(s) or the manufacturer(s) of components of Customer Systems (as defined below), the issue shall be deemed to be responded to when it is forwarded to such vendor(s) or manufacturer(s).
Holidays are defined as the following days
• New Year’s Day
• Memorial Day
• Independence Day
• Labor Day
• Thanksgiving Day
d. Upgrades. – From time to time during the term of this Agreement, Salesfusion may upgrade the Applications to add new features or functionalities, to discontinue features or functionalities, or to correct any known errors or defects. Salesfusion will notify Customer of any such noticeable or material changes to the Applications’ specifications, features, or functions. Salesfusion reserves the right to charge additional fees for access to new programs and applications offered by Salesfusion, which are not covered under this Agreement. If a new feature requires additional charges, that feature will be turned off by default and the Customer will have the option to add that feature to their service at any point in time by notifying Salesfusion and paying the applicable fees.
2. Obligations of Customer.
a. Hardware and Internet Access. – Customer shall be solely responsible for procuring, at its expense, the necessary environment to use the Applications via the Internet, including, without limitation, (i) computer hardware and equipment, (ii) Internet access, and (iii) telecommunications services (collectively, the “Customer Systems”). In addition, Customer is responsible for obligations under any third party agreements to which Customer is a party, including, without limitation, any agreements pursuant to which Customer procures the Customer Systems or any portion thereof, regardless of whether Salesfusion provides Customer with any assistance in such procurement.
b. Password. – Customer shall be responsible for keeping all Users’ Names and Passwords secret and confidential, and for any communications or transactions that are made using Customer’s User Names and Passwords and any other obligation which may result from such use. Customer shall be responsible for requesting a new User Name and Password if it believes that any of its User Names or Passwords have been stolen or might otherwise be misused.
c. Customer Data. – Customer shall be responsible for ensuring that any data, information or other materials that may be used, submitted, or entered by Users in the course of Users’ use of the Applications (the “Customer Data”) are accurate, are not corrupt in any way, and do not contain any viruses. Salesfusion shall use all reasonable efforts to perform daily backups of all Customer Data that is stored on Salesfusion systems. IN NO EVENT WILL SALESFUSION, INC. BE LIABLE FOR ANY CLAIMS OR DAMAGES RELATED TO THE LOSS OR CORRUPTION OF ANY CLIENT DATA.
d. Proper Use. – Customer shall be responsible for its Users’ use of the Applications in accordance with the applicable user manuals and other documentation, which may be amended from time to time and provided to Customer and/or Users either in writing or on-line, and any other instructions or guidance provided by Salesfusion Customer shall not, and shall ensure that its Users shall not, use, submit, or enter any data, information or other materials in the course of using the Applications that (i) violate any applicable laws, rules or regulations, (ii) infringe upon or misappropriate any intellectual property or proprietary rights of others, or (iii) violates the privacy rights of others.
e. Salesfusion Email Policy: You may not use Salesfusion to send Unsolicited Bulk Email or Spam. Unsolicited Bulk Email or Spam means both that the Recipient has not granted verifiable permission for the message to be sent and that the message is sent as a part of a larger collection of messages, all having substantively identical content. You may not use purchased, rented or third party lists of email addresses in your correspondence sent through Salesfusion. An unsubscribe or opt-out option, as well as a physical address of the sender must be included in every email sent via Salesfusion. Salesfusion reserves the right to suspend or terminate service to any customer not adhering to these policies.
3. Appointment of Account Managers. – Salesfusion and Customer shall each appoint one individual as an “Account Manager” under this Agreement, who shall serve as the principal point of contact for all communications between the parties regarding the subject matter of this Agreement. Each party shall provide the other with the name and contact information for its Account Manager. Either party may change its Account Manager at any time and from time to time by providing prior written notice to the other party. Account Managers shall be responsible for (i) receiving and submitting requests for information and/or assistance, if not otherwise handled via the Support Desk (as defined above), and (ii) addressing all other issues between the parties. Account Managers shall meet, as appropriate, to discuss the use of the Applications and Services and any other issues that may arise with respect to the performance of this Agreement. Customer’s Account Manager shall be authorized to act for and on behalf of Customer with respect to all matters relating to this Agreement.
4. Proprietary Rights; License; Use of Customer Data.
a. License – Salesfusion hereby grants Customer a nonexclusive, nontransferable, worldwide right and license to use the Applications solely for Customer’s internal business purposes, subject to the terms of this Agreement.
b. Proprietary Rights. Customer may not transfer, rent, lease, lend, copy, modify, translate, sublicense, time-share, electronically transmit or receive, or otherwise allow unauthorized access to, the Applications, and Customer shall have no right or license to, and Customer shall not, copy, print, display, publish, transmit, sublicense or otherwise transfer, distribute or make available to others, edit, modify or create any derivative work of all or any part of the Applications. Customer acknowledges and agrees that, as between Customer and Salesfusion, Salesfusion is the sole and exclusive owner of all rights, title and interest in and to the Applications and any information developed or collected by Salesfusion in connection with its operation of the Applications (other than Customer Data), including but not limited to all ideas, inventions, inferences, discoveries, developments, formats and processes, and all copyrights, patent rights and other intellectual property and proprietary rights therein and thereto, and Customer shall not assert any claims to the contrary.
c. Ownership – Salesfusion claims no rights or interest to Customer Data and shall treat all such Customer Data as Customer Confidential Information (as defined in Section 5).
5. Confidential Information.
a. Confidential Information. – “Confidential Information” means all information furnished by either party to the other in oral, written, machine-readable, web-accessible, or other form, which either party uses reasonable efforts to protect, or should reasonably be considered confidential or proprietary under the circumstances, and shall include, without limitation, (x) with respect to Salesfusion, the Applications, the principles (including, but not limited to, software development or design) upon which they are based, the manner by which they operate, and any improved software object functionality and performance derived from Customer’s use of the Applications; and with respect to Customer, the Customer Data provided under this Agreement; and (z) with respect to both parties, any information that relates to research, product plans, products, services, clients, markets, developments, inventions, designs, drawings, engineering, marketing or finances of either party. Confidential Information does not include information, technical data or know-how that (i) was or is in the possession of the other party without restriction at the time of disclosure as shown by such party’s files and records, or (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of such party, or (iii) was or is approved by the other party, in writing, for release, or (iv) was or is provided by either party to third parties without restriction. Without limiting the generality of the foregoing, Confidential Information includes any reports or documents created by the Customer or Salesfusion that include, summarize or refer to the Confidential Information disclosed hereunder.
b. Nondisclosure. – Both Salesfusion and Customer acknowledge that disclosure of the other party’s Confidential Information could cause serious harm to the other party, and, as an essential term to this Agreement, each party agrees to neither directly nor indirectly use any of the other party’s Confidential Information for any purpose, except as set forth in this Agreement. Except to the extent required by applicable law (in which case, such party must notify the other party of such required disclosure promptly and in writing and cooperate, at the other party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure), neither party shall disclose, or permit access to, all or any portion of the other party’s Confidential Information to any person unless such person is an employee of such party and has a need to know such Confidential Information for purposes of this Agreement. Without limiting the foregoing, Customer shall not disclose the existence of this Agreement without express prior approval from Salesfusion. Each party’s obligations regarding the Confidential Information of the other party shall continue for a period of three (3) years after the expiration of this Agreement.
c. Reverse Engineering. – Customer acknowledges that the Applications and the principles by which the Applications function are a confidential trade secret of Salesfusion and therefore Customer agrees not to attempt to modify the Applications or attempt to decipher, analyze, translate, decompile, disassemble or reverse engineer the Applications. Failure to comply with the above restrictions will result in automatic termination of this Agreement and will make available to Salesfusion other legal remedies.
d. The parties expressly agree that monetary damages will be inadequate to compensate a party for any breach by the other party of this Section 5 of this Agreement. Accordingly, the parties agree and acknowledge that any such violation or threatened violation may cause irreparable injury to the other party and that, in addition to any other remedies that may be available in law, in equity or otherwise, such party shall be entitled to obtain injunctive relief against a threatened breach of this Section 5 of this Agreement or the continuation of any breach of this Section 5, without the necessity of proving actual damages.
a. Warranty – Salesfusion represents, warrants and agrees that following delivery of the User Passwords and for the duration of the Term (the “Warranty Period”) (i) the Applications shall materially perform in accordance with the applicable functional specifications. In the event Customer reports a breach of the foregoing warranty during the Warranty Period, Customer’s sole remedy and Salesfusion sole obligation shall be one of the following options, such option to be selected by Salesfusion in its sole discretion: (i) to the extent practicable, Salesfusion may fix the Application and correct any defect or error, provided that Salesfusion agrees that such defect or error is correctable; and (ii) Salesfusion shall terminate Customer’s use of the Applications and issue a one month refund to Customer in an amount equal to the Access Fees paid by Customer for use of the Applications. The foregoing states Customer’s sole and exclusive remedy, and Salesfusion entire liability, for breach of the above warranty under this Agreement. Customer agrees that it shall have no remedy under this Paragraph 8(a) for claims made after expiration of the Warranty Period.
b. Disclaimer – EXCEPT AS SET FORTH HEREIN, THE APPLICATIONS AND SERVICES, ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND SALESFUSION, INC. HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SALESFUSION, INC. NEITHER WARRANTS THAT THE APPLICATIONS OR SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER, NOR DOES SALESFUSION, INC. MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE APPLICATIONS OR SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY SOFTWARE OR OTHER CONTENT CONTAINED IN OR PROVIDED THROUGH THE SALESFUSION, INC. SITE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SALESFUSION, INC., ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY AND CLIENT MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. ANY USE OF THE APPLICATIONS OR SERVICES, OR STORAGE OF CLIENT DATA IS AT CLIENT’S OWN RISK.
c. Third Party Disclaimer. The Applications includes third party software under license from a third party. Such third party does not (i) make any representations or warranties with respect to the Applications, (ii) assume any liabilities regarding Customer’s use of the Applications, or (iii) agree to or assume any obligation to provide support or information related to the Applications.
7. Limitation of Liability. – EXCEPT FOR CLAIMS UNDER SECTION 8, IN NO EVENT SHALL EITHER PARTY (INCLUDING WITH RESPECT TO SALESFUSION, INC., ITS LICENSORS) BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE, ANY OF THE APPLICATIONS. EXCEPT FOR CLAIMS UNDER SECTION 8, THE ENTIRE AGGREGATE LIABILITY OF SALESFUSION, INC., AND THE SOLE AND EXCLUSIVE REMEDY OF CLIENT, FOR ANY CLAIM OR CAUSE OF ACTION ARISING HEREUNDER (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE FEES ACTUALLY PAID TO SALESFUSION, INC. IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF ACCRUAL OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECT REGARDLESS OF WHETHER CLIENT’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
a. Salesfusion will defend, indemnify and hold harmless Customer and its officers, employees and agents from and against any claim or suit, and any liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising therefrom, alleging that Customer’s use of the Applications infringes upon or misappropriates any patent, copyright or trade secret of any third party. The foregoing obligation of indemnification shall not apply in the event such allegation of infringement or misappropriation arises from or is related to (i) any Customer Data, or (ii) use of the Applications in combination with software or data not supplied by Salesfusion if such infringement or misappropriation would not have been caused but for the combination.
b. Customer will defend, indemnify and hold harmless Salesfusion and its officers, employees and agents from and against any claim or suit, and any liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising therefrom, which (i) alleges that the Customer Data infringes upon or misappropriates any patent, copyright or trade secret of any third party or (ii) arises from or relates to the loss or corruption of the Customer Data.
c. The obligations under the foregoing indemnities are subject to the condition that the party seeking indemnification give the other: (1) prompt written notice of any claim or action for which indemnity is sought; (2) complete control of the defense and settlement thereof by the indemnifying party; and (3) cooperation of the other party in such defense at the defending party’s expense.
a. Force Majeure. – Neither party shall be liable to the other party in any way for any failure or delay in the performance of its obligations (other than payment obligations) under this Agreement due to any cause beyond such party’s reasonable control, including acts of God, explosions, failure of utilities, mechanical breakdowns, or other such occurrence (each, a “Force Majeure Event”); provided, however, that the party affected by the Force Majeure Event shall provide the other party with notice of the Force Majeure Event and use commercially reasonable efforts to minimize the effect of the Force Majeure Event upon such party’s performance. Without limiting the generality of the foregoing, Salesfusion shall not be liable to Customer in any way for any failure or delay in the performance of its obligations hereunder which failure is caused, directly or indirectly, by the failure of any matter for which Customer is responsible under Section 2.
b. Governing Law; Arbitration. – This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to the choice of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
c. Independent Contractor. – The parties acknowledge that the relationship between Customer and Salesfusion is that of an independent contractor, and that nothing contained in this Agreement shall be construed to place Customer and Salesfusion in the relationship of principal and agent, master and servant, partners or joint venturers.
d. Entire Agreement; Severability. – This Agreement, including the exhibits attached hereto, sets forth the entire Agreement between Customer and Salesfusion, and supersedes any and all other communications or advertising with respect to the Applications or Services. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect. In the event of any conflict between any provision of this Agreement and any applicable law, the provision or provisions of this Agreement affected shall be modified to remove such conflict and permit compliance with such law, and as so modified this Agreement shall continue in full force and effect.
e. Assignment. – The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and to their respective heirs, successors, assigns and legal representatives, except that Customer shall not assign or otherwise transfer this Agreement to anyone, including any parent, subsidiaries, affiliated entities or third parties, or as part of the sale of any portion of its business, or pursuant to any merger, consolidation or reorganization without Salesfusion prior written consent, not to be unreasonably withheld, and provided an assignee agrees to be bound by all terms and conditions of this Agreement. Salesfusion shall be entitled to assign this Agreement to a successor of all or substantially all of its relevant assets to which this Agreement relates, provided such party agrees in writing to be bound by all terms and conditions of the Agreement.
f. Waiver, Modification or Amendment. – Any waiver, alteration, modification, or amendment of this Agreement must be in writing and signed by both parties. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition, or of any other term, provision or condition of this Agreement.
g. Notices. – All notices, demands, certificates or other communications required or permitted to be given or made hereunder shall be in writing and delivered (i) personally; (ii) by a nationally recognized overnight courier; or (iii) by pre-paid, first class, certified or registered mail, return receipt requested, to the intended recipient thereof at its address set out on the signature page hereto. Any such notice, demand or communication shall be deemed to have been duly given when delivered. Any party may change the address or facsimile number to which notices, requests, demands or other communications to such party shall be delivered or mailed by giving notice thereof to the other parties hereto in the manner provided herein. Counterparts. – This agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Facsimile or other electronic copies of signatures (e.g., pdf, .tiff, or .jpg) will be binding to the same extent as original signatures.
h. Third Party Beneficiary – The owner of the third party software that is embedded in the Applications is an third party beneficiary of this agreement.
i. Survival. – Termination of this Agreement shall not relieve either party of its respective obligations to the other hereunder, including all payment obligations, which arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, the rights and duties of the parties under Sections 5-9 will survive the termination or expiration of this Agreement.