Terms of Service

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings. Any terms with initial letters capitalized that are not defined in these Terms shall have them meaning ascribed to them in the Agreement.

Account: means all SalesVu accounts or instances created by or on behalf of Subscriber or its Agents within the Service.

Agent: means an individual authorized to use the Service through Your Account as an agent and/or administrator as identified through a unique login.

Agreement: means the SalesVu Service Agreement between You and SalesVu.

Applicable Data Protection Law: means all federal, state and local laws, statutes, ordinances, rules and regulations of any applicable jurisdiction relating to data privacy and data security.

API: means the application programming interfaces developed and enabled by SalesVu that permit Subscriber to access certain functionality provided by the Service, including without limitation, the SalesVu REST API that enables the interaction with a SalesVu instance automatically through HTTP requests and the SalesVu application development API that enables the integration of a SalesVu instance with other web applications.

Confidential Information: means all information disclosed by or on behalf of You to SalesVu or by SalesVu to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Your Data and all Personal Information disclosed by or on behalf of you shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party without obligation of confidentiality; (b) was or is obtained by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information, as evidenced by the disclosing party’s written records.

Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by SalesVu to You, Agents or End-Users through the Site or otherwise.

End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using the Service.

Form: means the SalesVu Services Agreement and any other SalesVu generated service order form executed by You with respect to Your subscription to the Service, which form may detail, among other things, the number of Agents authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.

Other Services:means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, certain Other Services which may be integrated directly into Your SalesVu Service.

“Personal Information”means any information that (a) identifies an individual or relates to an identifiable individual; or (b) as otherwise may be defined by Applicable Data Protection Laws.

Process or Processing:means the collection, recording, organization, structuring, adaptation or alteration, retrieval, consultation, access, disclosure, transfer, storage, deletion, combination, destruction, disposal, or other use of information.

Representatives:means Affiliates, contractors, subcontractors, third-party service providers, or agents.

Service: means the on-demand SalesVu Point of Service customer service solution and tools provided by SalesVu, including, individually and collectively, the Software, the API and any Documentation. Any new or modified features added to or augmenting the Service or updates or enhancements to the Service (“Updates”) are also subject to these Terms, and we reserve the right to deploy Updates at any time.

Service Plan: means the service plan and the functionality and services associated therewith (as detailed on the Site) for which You subscribe with respect to each Agent.

Site: means www.salesvu.com and all other websites owned or operated by SalesVu or its subsidiaries and used to deliver the Service.

Software: means SalesVu POS for iPad, Customer Display by SalesVu, cloud-based management portal, and any other software provided by SalesVu (either by download or access through the internet) that allows an Agent or End User to use any functionality in connection with the Service.

Subscription Term: means the period during which You have agreed to subscribe to the Service with respect to any individual Agent.

Your Data: means all electronic data, text, messages or other materials or information submitted to the Service by You, Agents and End-Users in connection with Your use of the Service, including, without limitation, information relating to inventory, Trandaction IDs, ticket numbers, ticket amounts, items purchased, currency, authorization numbers, End User names, End User email addresses, gift card balances, last four digits of an End User’s credit card number, and brand name of credit card used by End Users. Unless specifically authorized by You in writing, We will not collect an End User’s telephone number.

SalesVu: means SalesVu, Inc., a Delaware corporation or any of its permitted successors or assignees. In these Terms, SalesVu may also be referred to through the use of “We” or “Our.”

Terms: means these Terms of Service, which have been incorporated into the SalesVu Service Agreement between SalesVu and Subscriber.

2
GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE

2.1 During the Subscription Term and subject to compliance by You, Agents and End Users with these Terms, You have the limited right to access and use the Service and related Documentation consistent with the Service Plan You subscribe to for Your internal business purposes.

2.2 A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, “browser” software that supports protocols used by SalesVu, including Secure Socket Layer (SSL) protocol or other protocols accepted by SalesVu, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Your Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by SalesVu. We assume no responsibility for the reliability or performance of any connections as described in this section.

2.3 You agree not to knowingly (a) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted under these Terms), distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents and End Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party other than Agents or End Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with SalesVu, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) try to use, or use the Service in material violation of these Terms.

2.4 You are responsible for compliance with the provisions of these Terms by Agents and End Users and, except to the extent caused by SalesVu’s acts or missions, for any and all activities undertaken by You, your Agents or Your End Users under Your Account, as well as for all Your Data. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service to store and transmit Your Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the Service Plan for which You subscribed, access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. The foregoing shall not be deemed to limit Your use of Our Multi-Branding and Light Agent features if Your Service Plan includes these features. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.

2.5 In addition to Our rights as set forth in Section 8.4, SalesVu reserves the right, in SalesVu’s reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which SalesVu will notify You at least five business days in advance both through Our forum page and a notice to Your Account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures not originating from or caused by, either directly or indirectly, our Service, (including, without limitation, Your inability to access the Internet),; or (c) if We reasonably suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Agents or End Users. We will schedule Planned Downtime for weekends (Pacific time zone) and other off-peak hours.

3
DATA PRIVACY AND SECURITY; CONFIDENTIALITY

3.1 Subject to the express permissions of these Terms, You and SalesVu will protect each other's Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other's Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees and Representatives who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.

3.2 SalesVu will maintain and will require all of its Representatives to maintain an Information Security Program (as defined below) that includes commercially reasonable administrative, physical and technical safeguards that comply with Applicable Data Protection Law and leading industry standards to protect the security, confidentiality and integrity of Your Data. Such Information Security Program shall, at a minimum, require SalesVu and its Representatives to maintain and implement: (i) an organizational structure and appropriate security controls to identify and protect Your Confidential Information in accordance with this Agreement; (ii) employee and Agent controls, such as communication of all applicable security policies, background checks (as permitted by applicable law), security awareness training, and disciplinary processes; (iii) controls to ensure the physical safety and security of SalesVu’s and its Representatives’ facilities, including, without limitation, records of such access, available for Your review; (iv) controls to ensure SalesVu’s and its Representatives’ security posture is maintained over time, such as patch management, backups, and incident management; (v) controls to protect access to SalesVu’s and its Representatives’systems, Your systems and Your Confidential Information, and ensure appropriate levels of access are restricted to authorized employees and Agents, and that authentication mechanisms are appropriately protected, such as key management and access rights auditing; and (vi) controls to ensure its software is securely developed in accordance with this Agreement, such as design reviews, secure separation of development and production environments, code reviews, and quality assurance testing. In addition, SalesVu shall securely store Your Data. Our compliance with the provisions of this Section 3.2 shall be deemed compliance with Our obligations to protect Your Data as set forth in Section 3.1.

3.3 You agree that SalesVu and the Representatives We use to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Your Data solely to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any Representatives We utilize will only be given access to Your Account and Your Data as is reasonably necessary to provide the Service and will be subject to written confidentiality obligations at least as restrictive as these Terms. In addition, SalesVu agrees that it will not be relieved of any of its obligations under this Agreement as a result of allowing such Representatives access to Your Data, and SalesVu will remain liable and responsible for the performance or non-performance by such Representatives as if they were SalesVu’s employees.

3.4 As soon as possible after any Confidential Information is no longer needed by SalesVu to fulfill its obligations under this Agreement, and in any event upon termination or expiration of this Agreement for any reason, SalesVu shall, and shall cause its Representatives, to promptly and securely destroy all Confidential Information in its possession, power or control, or, if requested by You, return such Confidential Information to You through a secure method in accordance with Applicable Data Protection Law.

3.5 SalesVu shall notify You via the telephone and email (as may be updated by You from time to time) of: (a) any access, possession, use or disclosure of Your Confidential Information, or attempt thereof, not expressly permitted by the Agreement; (b) any suspected breach or compromise of Your Confidential Information, or SalesVu's or its Representatives’ systems or networks that directly support Your Confidential Information (each of the foregoing, a "Data Security Breach"). SalesVu will use reasonable efforts to notify You within eight (8) hours, but in no event more than twenty-four (24) hours, after detecting or being notified of a Data Security Breach both by phone and email.

3.6 SalesVu shall not transfer Your Confidential lnformation to, or allow access to Your Confidential Information by, its employees or Representatives in any location outside the United States unless Subscriber has approved such transfer and SalesVu has entered into an international data transfer agreement with You.

3.7 SalesVu may access or disclose information about You, Your Account, Agents or End Users, including Your Data, in order to (a) comply with applicable law or valid subpoena or court order, provided that SalesVu shall provide You with prior written notice of such disclosure and shall provide reasonable assistance to You, if you wish to contest the disclosure; (b) reasonably protect SalesVu's or its customers' or partners' rights or property, including enforcement of these Terms or other policies associated with the Service; and (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.

3.8 As part of the Services, SalesVu will receive Personal Information from or on behalf of Subscriber, such as customer names, email addresses and gift card balances. With respect to Personal Information provided by You, or otherwise Processed by SalesVu on Your behalf, SalesVu shall, and shall ensure that any person engaging in Processing Personal Information on its behalf, shall:

a. Process Personal Information only to deliver services as instructed and permitted by You, in compliance with Applicable Data Protection Law, and not Process Personal Information for any other purpose, including for its own commercial benefit, unless You have provided Your prior written agreement;

b. Not disclose or transfer Personal Information to, or allow access by, any third party (including affiliates and subcontractors) without Your express prior written agreement, except where such disclosure, transfer or access is mandated by Applicable Data Protection Law (subject to SalesVu providing You with prompt written notice of such requirement to transfer or disclose, unless such notice is prohibited by Applicable Data Protection Law). If You approve SalesVu’s disclosure and/or transfer granting access of Personal Information to a third party, such third party shall, prior to any such disclosure, have entered into an agreement at least as restrictive as this Agreement. SalesVu shall remain accountable and responsible for all actions by such third parties with respect to the disclosed or transferred Personal Information. You hereby give express authorization for SalesVu to share Personal Information with Square, Inc., as required to facilitate credit card transactions in connection with the services provided by SalesVu. Notwithstanding the foregoing, SalesVu represents and warrants that in providing the Software and services to You, it does not have access to any End User credit card numbers and, therefore, will not pass such information to Square, Inc. For the avoidance of doubt, this authorization does not allow SalesVu to share Personal Information with Square, Inc. for any purpose other than for Square, Inc. to process credit card payments in connection with SalesVu’s provision of the Services to You under this Agreement, and Square, Inc. shall not use this information for any other purpose.

c. Ensure that all Personal Information created by SalesVu on behalf of Subscriber is accurate and, where appropriate, kept up to date, and ensure that any Personal Information which is inaccurate or incomplete is erased or rectified in accordance with Your instructions;

d. Notify You within twenty-four (24) hours, unless specifically prohibited by Applicable Law, when We receive: (i) any requests from an individual with respect to Personal Information Processed, including but not limited to opt-out requests, requests for access and/or rectification, blocking, and all similar requests, and shall not respond to any such requests unless expressly authorized to do so by You; (ii) any complaint relating to the Processing of Personal Information, including allegations that the Processing infringes on an individual’s rights under Applicable Data Privacy Law; or (iii) any order, demand, warrant, or any other document purporting to compel the production of Personal Information under applicable law;

e. Provide employees and personnel who will be provided access or will otherwise Process Personal Information with appropriate training regarding information security and the protection of Personal Information and ensure such employees and personnel have committed to maintaining Personal Information confidentially;

f. Provide to You, Your authorized representatives, and such independent inspection body as You may appoint, on reasonable notice: (i) access to SalesVu’s information, processing premises, and records; (ii) reasonable assistance and cooperation of SalesVu’s relevant staff; and (iii) reasonable facilities at SalesVu’s premises for the purpose of auditing SalesVu’s compliance with its obligations under this Agreement; and

g. Take any other steps reasonably requested by You to assist You in complying with any notification, registration, data protection impact assessment or other obligations applicable to You under Applicable Data Protection Law or in responding to any investigation by any law enforcement body or regulator if and to the extent such regulation relates to Confidential Information handled by SalesVu on Your behalf.

SalesVu acknowledges and agrees that its execution of this Agreement constitutes its certification that it understands the restrictions set forth in this Section 3.8 and will comply with them and all Applicable Data Protection Law.

4
INTELLECTUAL PROPERTY RIGHTS

Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the Service and all hardware, software and other components supplied by SalesVu and used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to SalesVu. SalesVu shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents or End Users. SalesVu®, and SalesVu’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of SalesVu (collectively, “Marks”), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent SalesVu, its services or products. As between You and SalesVu, You shall always own all right, title and interest in and to Your Confidential Information, which includes Your Data.

5
THIRD PARTY SERVICES

If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Your Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against SalesVu with respect to such Other Services. SalesVu is not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting SalesVu to disclose Your Login as well as Your Data as necessary to facilitate the use or enablement of such Other Service.

6
BILLING, PLAN MODIFICATIONS AND PAYMENTS

6.1 Unless otherwise indicated on a Form referencing these Terms and subject to Section 6.2, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within three (3) days of Our written notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Service by You, Agents and End Users.

6.2 If You choose to upgrade Your Service Plan or increase the number of authorized Agents during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon Your receipt of an invoice from Us following implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.

6.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and SalesVu does not accept any liability for such loss.

6.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against SalesVu based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if properly invoiced.

6.5 If You pay by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by SalesVu, or they may obtain a receipt from within the Service to track subscription status. SalesVu uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for SalesVu.

7
CANCELLATION AND TERMINATION

7.1 Either You or SalesVu may elect to terminate Your Account and subscription to the Service as of the end of your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term.

7.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, SalesVu reserves the right to delete all Your Data in the normal course of operation. Your Data cannot be recovered once Your Account is cancelled.

7.3 If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Section 2.5(c) or 7.4, in addition to other amounts You may owe SalesVu, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by SalesVu, provided that You provide advance notice of such breach to SalesVu and afford SalesVu not less than thirty (30) days to reasonably cure such breach.

7.4 SalesVu reserves the right to suspend or terminate the Service (or any part thereof), Your Account or Your and/or Agents' or End Users' rights to access and use the Service, if We reasonably believe that You, Agents or End Users have materially violated these Terms and have not cured such breach within thirty (30) days of receipt of written notice from SalesVu, specifying the nature of the violation. SalesVu shall not be liable to You, Agents, End Users or any other third party for any such suspension or discontinuation of Your rights to access and use the Service performed in accordance with the terms of this Section 7.4.

8
REPRESENTATIONS; DISCLAIMER OF WARRANTIES

8.1 SalesVu represents and warrants that: (i) the Service will conform with the terms set forth in the Agreement, Documentation and the applicable Forms, (ii) the Service will be performed in a competent, professional and workmanlike manner with the leading professional practices in its industry; (ii) Our collection, processing, use, storage and disposal of Your Confidential Information and Our provision of the Service shall comply at all times with all applicable law and industry standards; (iii) there is no outstanding or threatened order, writ, injunction, or decree of any court, governmental agency, or arbitration tribunal against Us which would impact Our ability to provide the Service to You; (iv) We will implement and maintain security procedures and practices for confidential information that comply with applicable law and are designed to ensure security and confidentiality, protect against any anticipated or actual threats or hazards to the security or integrity of Your Confidential Information, and prevent unauthorized access, acquisition, destruction, use, modification and/or disclosure of Your Confidential Information; (v) the Service shall not introduce or allow the introduction, into Your Data or systems, of any virus, worm, “back door,” Trojan Horse, or similar harmful code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros; and (vi) it has the right to grant You the rights and licenses hereunder without violating any rights of any third party.

8.2 EXECPT AS SET FORTH IN THIS AGREEMENT, THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND SALESVU EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY ANDFITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT SALESVU DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM SALESVU OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

9
LIMITATION OF LIABILITY

9.1EXCEPT FOR A PARTY’S DATA PRIVACY, SECURITY AND CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3, SAVESVU’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OR DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

9.2NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, EXCEPT FOR A PARTY’S DATA PRIVACY, SECURITY AND CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3, SAVESVU’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OR DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY’S AGGREGATE LIABILITY TO TO THE OTHER ARISING OUT OF THESE TERMS, THE AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID OR PAYABLE BY YOU UNDER THE TERMS OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SALESVU WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. SALESVU HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.

9.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, SALESVU'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10
MUTUAL INDEMNIFICATION

10.1 Indemnification by SalesVu. SalesVu will defend Subscriber against any claim, demand, suit or proceeding made or brought against Subscriber by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Subscriber ”), and will indemnify Subscriber from any damages, attorney fees and costs finally awarded against Subscriber as a result of, or for amounts paid by Subscriber under a settlement approved by SalesVu in writing of, a Claim Against Subscriber, provided Subscriber (a) promptly gives SalesVu written notice of the Claim Against Subscriber, (b) gives SalesVu sole control of the defense and settlement of the Claim Against Subscriber (except that SalesVu may not settle any Claim Against Subscriber unless it unconditionally releases Subscriber of all liability), and (c) gives SalesVu all reasonable assistance, at SalesVu’s expense. If SalesVu receives information about an infringement or misappropriation claim related to a Service, SalesVu may in its discretion and at no cost to Subscriber (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching SalesVu’s warranties under “SalesVu Warranties” above, (ii) obtain a license for Subscriber’s continued use of that Service in accordance with this Agreement, or (iii) terminate Subscriber’s subscriptions for that Service upon 30 days’ written notice and refund Subscriber any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Subscriber; (2) a Claim Against Subscriber arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by SalesVu, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Subscriber arises from Services under an Order Form for which there is no charge; or ( 4) a Claim against Subscriber arises from Content, a Non-SalesVu Application or Subscriber’s breach of this Agreement, the Documentation or applicable Order Forms.

10.2 Indemnification by Subscriber. Subscriber will defend SalesVu and its Affiliates against any claim, demand, suit or proceeding made or brought against SalesVu by a third party alleging (a) that any Subscriber Data or Subscriber’s use of Subscriber Data with the Services, (b) a Non-SalesVu Application provided by Subscriber, or (c) the combination of a Non-SalesVu Application provided by Subscriber and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Subscriber’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against SalesVu ”), and will indemnify SalesVu from any damages, attorney fees and costs finally awarded against SalesVu as a result of, or for any amounts paid by SalesVu under a settlement approved by Subscriber in writing of, a Claim Against SalesVu, provided SalesVu (a) promptly gives Subscriber written notice of the Claim Against SalesVu, (b) gives Subscriber sole control of the defense and settlement of the Claim Against SalesVu (except that Subscriber may not settle any Claim Against SalesVu unless it unconditionally releases SalesVu of all liability), and (c) gives Subscriber all reasonable assistance, at Subscriber’s expense. The above defense and indemnification obligations do not apply if a Claim Against SalesVu arises from SalesVu’s breach of this Agreement, the Documentation or applicable Order Forms.

11
ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

11.1Each party may, without the other party’s consent, assign the Agreement to any affiliate or in connection with any merger or change of control of such party or the sale of all or substantially all of such party’s assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

11.2 These Terms, together with the Agreement and any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and SalesVu with regard to the subject matter hereof. All amendments to these Terms must be in a writing signed by both parties. These Terms shall supersede all terms of any "clickwrap" or "shrinkwrap" license included in any package, media, or electronic version of the Software, and any such Software shall be licensed under these Terms. Either party’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

12
SEVERABILITY

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

13
EXPORT COMPLIANCE AND USE RESTRICTIONS

The Service and other Software or components of the Service which SalesVu may provide or make available to You, Agents or End Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Agents and End Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Agents or End Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End Users are located.

14
RELATIONSHIP OF THE PARTIES

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

15
SURVIVAL

Sections 1, 3, 4, 7 and 9-20 shall survive any termination of our agreement with respect to use of the Service by You, Agents or End Users. Termination of such agreement shall not limit Your or SalesVu's liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

16
NOTICE

All notices to be provided by SalesVu to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or (ii) by certified US mail, return receipt requested, to the contact mailing address provided by You on any Form. You must give notice to us in writing by Courier or US Mail to the following address: SalesVu, LLC., Attn: Legal Department, 2541 S. IH35 No 200-172, Round Rock, TX 78664 USA. All notices shall be deemed to have been given five (5) business days after being deposited in the mail or one business day after being sent with a Courier as permitted above.

17
GOVERNING LAW

These Terms shall be governed by the laws of the State of Texas without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Texas for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by You, Agents or End Users.