THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND SALESVU AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.
By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any Agent or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to SalesVu that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
1. DEFINITIONS
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:
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.
API: means the application programming interfaces developed and enabled by SalesVu that permits 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 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 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; (b) was or is obtained by the receiving party by 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.
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 any SalesVu generated service order form executed or approved 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.
Service: means the on-demand SalesVu customer service solution and tools provided by SalesVu, including, individually and collectively, 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.
Software: means 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 submitted to the Service by You, Agents and End-Users in connection with Your use of the Service.
SalesVu: means SalesVu, Inc., a Delaware corporation or any of its successors or assignees. In these Terms, SalesVu may also be referred to through the use of “We” or “Our.”
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, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT SALESVU DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, 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
9.1 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, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD 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.
9.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, SALESVU'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. 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. INDEMNIFICATION
10.1 SalesVu will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). SalesVu shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by SalesVu for such defense, provided that (a) You promptly notify SalesVu of the threat or notice of such IP Claim, (b) SalesVu will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim, and (c) You fully cooperate with SalesVu in connection therewith. If use of the Service by You, Agents or End Users has become, or in SalesVu’s opinion is likely to become, the subject of any such IP Claim, SalesVu may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by SalesVu, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription Charges previously paid to SalesVu for the corresponding unused portion of Your Subscription Term. SalesVu will have no liability or obligation under this Section 10.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than SalesVu; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing.
The provisions of this Section 10.1 state the sole, exclusive and entire liability of SalesVu to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You, Agents or End Users.
10.2 You will indemnify and hold SalesVu harmless against any claim brought by a third party against SalesVu arising from or related to use of the Service by You, Agents or End Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that SalesVu promptly notifies You of the threat or notice of such a claim.
11. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
11.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without SalesVu's prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any affiliate or in connection with any merger or change of control of SalesVu or the sale of all or substantially all of Our 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 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. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by SalesVu as Your consent to any such amendment. SalesVu'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.
15. SURVIVAL
Sections 1, 3, 4 and 9-19 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 US mail to the contact mailing address provided by You on any Form; or (ii) electronic mail to the electronic mail address provided for Your Account owner. 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 immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
17. GOVERNING LAW
These Terms shall be governed by the laws of the State of California 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, Travis County, 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.
18. FEDERAL GOVERNMENT END USE PROVISIONS
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of these Terms.