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Terms of Service

This TERMS OF SERVICE AGREEMENT (this “Agreement”) is entered into by and between Salesfusion, Inc., a Delaware corporation (“Salesfusion”) and the individual and/or entity designated as “Customer” on one or more ordering documents referencing this Agreement (each an “Order<,” and together, the “Orders”) and describing the software subscription and related services to be provided by Salesfusion (collectively, the “Services”). Salesfusion and Customer are sometimes referred to in this Agreement individually as “Party” and collectively as “Parties”. This Agreement is effective as of the date Customer executes the first Order and/or begins using the Services (as defined below) (the earlier date being the “Effective Date”).

  1. Customer Rights and Responsibilities. Subject to the terms and conditions of this Agreement, Salesfusion hereby grants to Customer a nontransferable, nonexclusive right to access and use the Services and to authorize Customer’s employees, agents, and contractors (each, an “End User” and collectively, the “End Users”) to use the Services during the Term. This Agreement grants Customer and its End Users the right to use the Services and does not grant a license to any software. Customer is responsible for ensuring that its End Users comply with all of the terms and conditions in this Agreement and Customer shall be liable for all acts and omissions of its End Users. Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, computers, computer operating systems, internet access, and web browsers. Customer shall be responsible for maintaining the security of Customer’s account access passwords. Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services and shall use no less than industry standard security precautions in connection with its use of the Services and content obtained therefrom.
  2. Usage Restrictions and Requirements.
  3. Customer Representations and Warranties. Customer represents and warrants to Salesfusion that: (a) it has the right, power and authority to enter into the Agreement; (b) it will use the Services only in compliance with all applicable laws and regulations, including those related to export, spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity and defamation; (c) it will abide by all access and use restrictions contained in any materials made available through the Services; (d) it will not use the Services in any manner for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups E:1, D:4 and D:3, as set forth in Supplement No. 1 to Part 740 of the United States Export Administration Regulations, and (e) it will not directly or indirectly provide access to the Services to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under United States Export Regulations. Customer further represents and warrants that Customer is not located in, under the control of, or a national or resident of any such country or on any such list.
  4. Ownership. 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 Services and any information developed or collected by Salesfusion in connection with its operation of the Services (other than Customer Data, as defined below), 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. Any rights not expressly granted to Customer herein are reserved by Salesfusion. All suggestions, enhancement requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Salesfusion, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership rights. Customer owns any data, information or material originated by Customer that Customer submits, collects or provides in the course of using the Services, including information regarding Customer’s contacts created through use of the Services (“Customer Data”). Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Services. Salesfusion acquires no right, title or interest in or to Customer Data under this Agreement except to the limited extent necessary to perform the Services.
  5. Orders. Customer agrees to purchase the Services specified in its Order(s) and to use the Services in accordance with the terms and conditions set forth in this Agreement. This Agreement and the Orders represent the Parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Salesfusion ordering document, and no terms included in any such purchase order or other non-Salesfusion ordering document shall apply to the Services. In the event of a conflict between this Agreement and any Order, the terms of this Agreement shall control.
  6. Billing and Payment. Customer shall pay all fees set forth in each Order in accordance with the payment provisions set forth herein. Salesfusion will invoice Customer annually in advance for Services to be provided during the Term. The invoiced amounts will include fees for all Services to be provided during such period. If the Order specifies a different billing frequency, Customer will provide Salesfusion with valid and updated credit card or ACH information and hereby authorizes Salesfusion to charge such credit card or ACH for all Services listed in the Order, in accordance with the billing frequency stated in the applicable Order. Customer is responsible for providing complete and accurate billing and contact information to Salesfusion and notifying Salesfusion of any changes to such information. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities with respect to the Services (collectively, “Taxes”), and Customer shall be responsible for payment of all such Taxes (excluding taxes based on Salesfusion’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as set forth in the Order. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all reasonable costs and expenses of collection. Salesfusion may suspend or terminate any or all of the Services provided to Customer if Customer’s account has been delinquent for thirty (30) days, provided that such right shall not exist with respect to amounts subject to a good faith dispute. In the event Customer disputes any amounts stated in an invoice from Salesfusion, Customer must notify Salesfusion in writing of such disputed amounts within thirty (30) days after receipt of the applicable invoice. Such notice shall contain the amount disputed and the basis for Customer’s objection. The parties will work together in good faith to resolve the dispute as soon as reasonably practicable. Fees for the Services after the Initial Term or then current Renewal Term may be changed by Salesfusion at any time upon notice to Customer (which may be by email), which change(s) will be effective as of commencement of the immediately following Renewal Term. If Customer is purchasing the Services through a Salesfusion authorized reseller (“Reseller”), then Customer shall remit all payments to Reseller and all billing and payment terms will be determined by such Reseller.
  7. Overages. If at any time Salesfusion determines that Customer’s database size (“Database Size”) has exceeded the maximum database size listed on an Order Form, Salesfusion shall notify Customer (which may be via email) and Customer shall have fourteen (14) days to bring its Database Size within the designated limit. If Customer fails to do so within fourteen (14) days after receipt of Salefusion’s notice, Customer will be charged Salefusion’s then-current usage fees applicable to such overage and such fees shall continue to apply for the remainder of the Term.
  8. Customer Support. Salesfusion will provide assistance and support for Customer’s use of the Services and will use commercially reasonable efforts to respond to and resolve all Customer support issues. Salesfusion will have no obligation to support problems due to causes external to the Services or otherwise beyond the reasonable control of Salesfusion.
  9. Maintenance. The Services may be temporarily unavailable from time to time for scheduled maintenance, unscheduled emergency maintenance, or due to other causes beyond Salesfusion’s reasonable control. Salesfusion shall use reasonable efforts to provide notice to Customer (which may be by email) of any scheduled unavailability of the Services. Notwithstanding the foregoing, Salesfusion’s normal windows for scheduled maintenance are on Saturdays between 6:00 a.m. and 9:00 a.m., Eastern Standard Time, and Salesfusion will not be obligated to notify Customer of unavailability of the Services during such times.
  10. Changes to the Services; Discontinuance. Salesfusion may, without notice to Customer, update or otherwise modify the Services in its sole discretion, including without limitation providing updates or modifying features or functionality, or removing features or functionality (collectively, “Updates”). This Agreement applies to all such Updates. In the event Salesfusion discontinues the sale of any material portion of the Services, Salesfusion will either (at Salesfusion’s option): (a) terminate provision of the discontinued Services and refund Customer pro-rata for the fees prepaid by Customer with respect to the discontinued Services that would otherwise have been provided to Customer; or (b) continue to provide the Services to Customer through the end of Customer’s current Term, provided that the applicable fees for such period have been paid to Salesfusion.
  11. Privacy Policy. Salesfusion shall treat Customer Data in accordance with the terms set forth in the Privacy Policy located at http://www.Salesfusion.com/privacy-policy/ or such other URL as may be provided by Salesfusion from time to time.
  12. Term and Termination.
  13. Salesfusion Limited Warranty. Salesfusion warrants to Customer that it will make commercially reasonable efforts to provide the Services substantially in accordance with the description of the Services on its website. In the event Salesfusion breaches the foregoing warranty and Customer provides Salesfusion with written notice of such breach, Customer’s sole remedy and Salesfusion’s sole obligation shall be one of the following options, such option to be selected by Salesfusion in its sole discretion: (a) to the extent practicable, Salesfusion may fix the Services and correct any defect or error, provided that Salesfusion agrees that such defect or error is correctable; or (b) Salesfusion may terminate Customer’s use of the Services and issue a refund to Customer in an amount equal to the fees pre-paid by Customer (if any) for Services not received. The foregoing states Customer’s sole and exclusive remedy, and Salesfusion’s entire liability, for breach of the above warranty under this Agreement. Customer agrees that it shall have no remedy under this Section for claims made after expiration of the Term. The Services include software under license from third parties. Such third parties do not (i) make any representations or warranties with respect to the Services, (ii) assume any liabilities regarding Customer’s use of the Services, or (iii) agree to or assume any obligation to provide support or information related to the Services.
  14. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THE PREVIOUS SECTION (LIMITED WARRANTY), THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATION OR WARRANTY, AND SALESFUSION AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. SALESFUSION AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SALESFUSION AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT: (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER SALESFUSION NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SALESFUSION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
  15. Indemnification.
  16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO SALESFUSION IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES. SOLELY TO THE EXTENT THAT THEY ARE HELD TO BE LEGALLY INVALID, THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL NOT APPLY AND ALL OTHER TERMS SHALL REMAIN IN FULL FORCE AND EFFECT.
  17. Confidentiality.
  18. General Provisions.