SalesPortal Service Agreement (revised October 2011)
IMPORTANT - READ CAREFULLY: This Agreement (the "Agreement") is a binding legal agreement between you (an individual person, a legal end-user entity and/or an authorized representative of a legal end-user entity or individual person), who will be referred to in this Agreement as "You" and/or "User") and SalesPortal, Inc. ("Company") for access to and use of Company's online auction-based leads marketplace (the "Service"). If You register to use the Service or You otherwise access or otherwise use the Service, You agree to be bound by this Agreement. If You do not agree to the terms of this Agreement, do not register or use the Service.
TERMS AND CONDITIONS
1. THE SERVICE.
You may register online for free at the Service Website (as defined below) or with our internal registration team if You are referred to us by one of our Sales Representatives, but Your registration must be approved by Company before You will be able to use the Service. After approval, Users who are lead sellers ("Lead Sellers") and/or their authorized representatives ("Authorized Representatives") (e.g. contact centers) may create campaigns to sell leads ("Sell Campaigns") and Users who are lead buyers ("Lead Buyers") and/or their Authorized Representatives (e.g. advertising/media agencies) may create campaigns to buy leads ("Buy Campaigns") by bidding on Lead Sellers' leads ("Leads"). If multiple Lead Buyers bid on a Lead Seller's leads, Company's proprietary algorithms will determine the most relevant Lead Buyer and also will optimize the Lead Seller's revenue by matching that Lead Seller with a Lead Buyer or several Lead Buyers. Company shall provide billing and payment services on a best efforts basis, but does not warrant that it will preserve or maintain current and historic transactional records. User acknowledges and agrees that the Company does not have any responsibility to report, calculate, determine or anticipate the payment of any taxes, which may be assessed or owed by any User (whether it be a Lead Seller, Lead Buyer and/or an Authorized Representative) in connection with the use of the Company's Site and Service. User understands and agrees that User (whether it be a Lead Seller, Lead Buyer, or an Authorized Representative) is solely responsible for the calculation and payment of any taxes that may be incurred by it as a result of using the Company's Site and Service and shall indemnify Company for any violation thereof pursuant to this Agreement.
Company is constantly improving the Service. During the pre-registration process or anytime thereafter, Company may record any web or telephonic conversation for quality and training purposes. You acknowledge and agree that Company may make non-material changes to the Service without prior notice to You. In addition, the Company expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Service and the Website by any person or entity, at the sole discretion of the Company, for any reason and without notice. The Company may stop (permanently or temporarily) providing the Service (or any features within the Service) at its sole discretion without prior notice to You. You may also stop using the Service at any time, but will remain subject to certain obligations, including the making of payments to Company and the non-circumvention of this Agreement for a period of two (2) years after You cease using the Service.
2. GENERAL USER OBLIGATIONS.
2.1 Registration and Approval.
The Service is available only to individuals or entities that can form a legally binding agreement and conduct business within the United States of America, although Company reserves the right to refuse any User and/or to review and verify the information provided in a User's registration application and to, at its sole discretion, postpone or reject approval. You acknowledge and agree that Company may run a third-party credit check as part of the approval process. After approval, a User will become a "Registered User" and shall be permitted to use the Service. The Company reserves the absolute right to review the status and compliance of any User with the terms of this User Agreement and to suspend or terminate a User's use of the Service without notice. You acknowledge and agree that if Company disables access to Your account, You may be prevented from accessing the Service and Your account. Unless expressly permitted by Company pursuant to a separate agreement, You agree that You will not reproduce, duplicate, copy, sell, trade or resell the Service for any purpose.
2.2. Username and Password.
At registration, You will select a username (a valid e-mail address that You can access), a password and a security question. A valid e-mail address is required to access Service. You agree that You are solely responsible for preserving the confidentiality of Your username and password and all activities and charges related to the use of Your password, including unauthorized use. You agree not to furnish Your username, password or other information to any other party for use of the Service. You agree to notify the Company immediately of any unauthorized use of Your personal password or username and any other breach of security regarding the Service. You may create other "Admin" or "User" accounts (with limited privileges) with separate usernames and passwords as part of Your account.
2.3. User Information.
You agree that all of the information provided in Your registration application is timely, true and correct, including, but not limited to, Your legal name, address, phone number, e-mail address, company name, website and other personal and business information. You understand that Your failure to provide accurate and complete information may result in actions taken against You, including without limitation, the immediate suspension of Your use of the Service. You understand that Company will primarily communicate with You about the Service via e-mail and in-product messages. Company may (but shall not be obligated to), in its sole discretion, view submitted material, content and information relating to the Service, including, but not limited to Buy and Sell Campaigns and Leads sold and bought. Company may (but shall not be obligated to) intercept and disclose any content, record, use or other information to the extent reasonably necessary to carry out the terms of this User Agreement, to protect the rights of the Company, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, information, or court order submitted or transmitted to the Company. The Company reserves the right, at its sole discretion, to amend, edit, remove or otherwise block any material posted by a User which may, in the Company's sole discretion, violate any state, federal or local law or violate any aspect of this User Agreement or in order to limit Company's liability. However, the Company does not assume responsibility for verifying the material, content and information on the Service and You shall be fully responsible (and shall indemnify Company pursuant to Section 13 of this Agreement) for any damages, losses, expenses or other injuries incurred by any User as a result of relying on any material, content and information posted in the Service.
In addition to any other representations and warranties provided by You in this Agreement, You represent and warrant that:
- You (and/or, in the case of an Authorized Representative, Your customers or principals that are Lead Buyers and/or Lead Sellers) take sole and full responsibility for collecting and/or paying (and Company is not responsible for withholding) any state, federal, local or other taxes (e.g. sales tax, use tax) as a result of any transactions conducted under this Agreement;
- You (and/or, in the case of an Authorized Representative, Your customers or principals that are Lead Buyers and/or Lead Sellers) are in compliance with and shall remain in compliance with all federal, state and other rules and regulations (e.g. Telephone Consumer Protection Act (TCPA), the Federal Trade Commission's (FTC) Telemarketing Sales Rule, the CAN-SPAM Act) relating to telemarketing, telesales, electronic mail marketing and related activities.
- You (and/or, in the case of an Authorized Representative, Your customers or principals that are Lead Buyers and/or Lead Sellers) are in compliance with and shall remain in compliance with all credit card rules, regulations and merchant credit card processing agreements;
- All content provided by You (and/or, in the case of an Authorized Representative, Your customers or principals that are Lead Buyers and/or Lead Sellers) to Company in connection with the Service is properly authorized and not an infringement of the copyright, trademark or any other intellectual property of others;
- You (and/or, in the case of an Authorized Representative, Your customers or principals that are Lead Buyers and/or Lead Sellers) agree to protect Lead (customer/caller) information and customer/caller privacy pursuant to the terms of this Agreement, and Company's Privacy Policy; and
- You (and/or, in the case of an Authorized Representative, Your customers or principals that are Lead Buyers and/or Lead Sellers) are in compliance and shall remain in compliance with all local, state and federal laws, including intrastate commerce laws - i.e. all responsibility relating to legal compliance shall remain with You, and not Company.
- All Information provided by You hereunder shall be used by Company for the purposes stated herein and shall be treated in accordance with the Company's Privacy Policy to the extent that the Privacy Policy does not interfere with the herein-stated purposes.
3. LEAD SELLER OBLIGATIONS.
3.1 Creating Sell Campaigns.
When creating a Sell Campaign, a Lead Seller or its Authorized Representative agrees that it is offering to sell its Leads to any Lead Buyer or its Authorized Representative who satisfies Company's Service requirements and Lead Seller's and its Authorized Representative's preferences. Such Lead Seller or its Authorized Representative shall provide relevant information regarding its product or service, including but not limited to a detailed description, customer/caller demographic details, approximate number of inbound calls, hours of operation and geographic extent of their advertising reach (as defined by phone area codes) as Lead Buyers and their Authorized Representatives rely on such information when bidding for leads. Lead Sellers and their Authorized Representatives are solely responsible for the accuracy, completeness and validity of all the information in their Sell Campaigns. Each Lead Seller, by itself or through its Authorized Representative, represents and warrants that all information provided in the Sell Campaigns is accurate and truthful. Lead Sellers and their Authorized Representatives also agree that they will only transfer Leads to a Lead Buyer or its Authorized Representative if the Lead satisfies the Lead Buyer's qualification criteria, including but not limited to, Lead Buyer's qualification question(s) and geographic constraints. Lead Sellers and/or their Authorized Representatives will not get paid for any Leads that do not satisfy the terms and obligations of this Agreement. Lead Sellers and/or their Authorized Representatives will not get paid for any live phone transfer leads that are connected with the Lead Buyer for less than 20 seconds. Lead Sellers and their Authorized Representatives understand and agree that the Company, at its sole discretion, may take any action it deems necessary to review and suspend a Lead Seller's and/or its Authorized Representative's account.
3.2 Managing Sell Campaigns.
Lead Sellers and their Authorized Representatives may manage (pause, restart, delete or edit) their Sell Campaigns using the Service website. Lead Sellers and their Authorized Representatives may also use the Service Website to edit preferences, select or de-select specific Lead Buyers or change Sell Campaign attributes, such as reserve price, hours of operation or geographic extent of advertising reach.
3.3 Digital Call Recording of Customer/Caller's consent.
Lead Sellers must digitally record the portion of the calls wherein the customer/caller's consent is obtained for his/her acceptance of the Lead Buyer's offer that was presented as well as for the transfer of the lead, regardless of the mechanism of such lead transfer. These digital call recordings must be stored for easy access for future playback. Lead Sellers must also ensure that their digital call recording is terminated after a live phone Lead has been transferred to the Lead Buyer.
4. LEAD BUYER OBLIGATIONS.
4.1 Creating Buy Campaigns.
When creating a Buy Campaign, a Lead Buyer or its Authorized Representative must provide its requirements, including but not limited to a detailed description of its product or service, lead qualification question(s), phone number to transfer leads to, hours of operation of the Lead Buyer's contact center, geographic constraints for Leads, and the maximum number of concurrent calls that they are able to process emanating from Lead Buyer's Buy Campaigns. Company's proprietary algorithm uses such information in its matching process. Lead Buyers and their Authorized Representatives are solely responsible for the accuracy, completeness and validity of all information provided by them. Each Lead Buyer or its Authorized Representative represents and warrants that all information provided in the Buy Campaigns is accurate and truthful. Lead Buyers and their Authorized Representatives understand and agree that the Company, at its sole discretion, may take any action it deems necessary to review, and suspend a Lead Buyer's account. Lead Buyers and their Authorized Representatives may manage (pause, re-start, delete or edit) their Buy Campaigns via the Service website. Lead Buyers and their Authorized Representatives may also use the Service Website to stop buying Leads from Sellers or change Buy Campaign attributes, such as hours of operation and geographic constraints.
4.2 Receiving Leads.
A Lead Buyer shall not receive Leads until such Lead Buyer is connected to a Lead Seller ("connected" shall mean that the bid for at least one lead type is above the Lead Seller's reserve price). Notwithstanding the above, a connected Lead Buyer is not guaranteed to receive any Leads, and Company has the sole right to match and manage Leads as it deems appropriate. Once a Lead Seller and/or its Authorized Representative transfers (defined as either (i) a live phone transfer of the Lead that is connected for a minimum of 20 seconds, or (ii) a data record of a scheduled call back for the Lead or (iii) the email address of the Lead) a Lead, the connected Lead Buyer or its Authorized Representative is obligated to pay for it. Notwithstanding the above, neither Company nor Lead Seller (or its Authorized Representative) is required to verify the immediate whereabouts of a customer/caller based on the customer/caller's area code (e.g. customer/caller may be using a cellular phone with a New York area code, but be residing in California). Neither Company nor Lead Seller represents or warrants that the transferred Leads will result in any successful sales conversions for the Lead Buyer; Lead Buyer or its Authorized Representative is encouraged to test the Service to establish Lead Buyer's level of satisfaction with the Service. The live phone transfer Leads shall be transferred to the phone number submitted by the Lead Buyer or its Authorized Representative while creating its Buy Campaign. Lead Buyer or its Authorized Representative, not Company or Lead Seller (or its Authorized Representative), shall be responsible for the proper functioning of Lead Buyer's submitted phone numbers and for ensuring that live Lead Buyer's sales agents are available to receive calls during the time periods provided by Lead Buyer or its Authorized Representative. Lead Buyers shall not permit calls to be received and/or answered by non-live agents (e.g. robots, automated call answering devices, IVR). Data records of scheduled call back-Leads and e-mail address Leads shall be provided in real-time to Lead Buyer or its Authorized Representative via in-product reports. Lead Buyer acknowledges and agrees that Data records of scheduled callback Leads and e-mail address Leads are provided solely for the purpose of contacting the customer/caller with the Lead Buyer Offer.
5. LICENSE.
5.1 Company Intellectual Property.
Company intellectual property ("Company IP") is all inventions, know how, improvements, discoveries, methods, processes, concepts, designs, ideas, prototypes, samples, drawings, blueprints, specifications, computer or intellectual property programs, methods of doing business, copyrights, trademarks, trade names, software and/or other works conceived of and/or reduced to practice or writing or otherwise relating to the Website or Service. Company IP may be created by one of more of Company's employee(s) alone or jointly with a User or Users arising from the use and development of the Service or as a result of User's feedback regarding the Site or Service ("Feedback"). All right, title and interest in any Company IP shall belong to Company and shall be subject to the conditions of this User Agreement. User hereby irrevocably assigns to Company all right, title and interest User may acquire in any Company IP. Company may, at its option, file an application for intellectual property protection for Company IP. If any such Company IP is created with User's participation, User agrees to cooperate with Company to assure that such application(s) will cover, to the best of User's knowledge, all related assets, including all features of commercial interest and importance. Company IP is the sole and exclusive property of the Company, unless otherwise stated and may not be used without the prior written consent of the Company.
5.2 Grant.
Only registered Users shall obtain access to the Service, which may incorporate Company IP. Any violation of this provision is a breach of the license. The Service consists of various databases, services, functions and remotely-accessed gateways of Company (collectively "Features") which may change from time to time. Access to certain Features may be restricted. You grant to Company a non-exclusive, worldwide, royalty-free license to use, copy, encode, store, archive, distribute, transmit and publicly display Your name, logo or other identifying mark on Company's website or other marketing materials so that Company may identify you as a client of Company.
5.3 Limitations.
User may not copy, download, scrape, store, publish, transmit, retransmit, distribute, transfer, disseminate, broadcast, circulate, sell, resell or otherwise use the data, or any portion of the data, in any form or by any means, except (i) as expressly permitted by this Agreement, (ii) with Company' prior written permission, or (iii) if not expressly prohibited by this Agreement, as allowed under the fair use provision of the Copyright Act (17 U.S.C.A. § 107).
5.4 Rights in Data, including Customer/Caller Information.
Except for the license granted in this Agreement, all rights, title and interest in data, in all languages, formats and media throughout the world, including all copyrights, are and will continue to be the exclusive property of Company. Lead Sellers shall retain rights to all customer/caller information provided to them by their customers/callers, and Lead Buyers shall obtain rights to all customer/caller information provided to them via the Leads for a period of three (3) months after receiving such Leads and must discard and refrain from using such information after such time unless otherwise authorized by law. Company shall obtain rights to store and use information collected by the Service, but only to the extent of providing the Service, and not for any other purpose (such as marketing to such customers/callers).
5.5 Termination of Agreement.
Except for the terms herein which expressly state that they shall survive termination, this Agreement and the License granted hereunder shall terminate immediately upon the election of either party to effectuate a termination of the Service by accessing and confirming the online termination module within Your account. All other terms and conditions relating to termination stated herein shall constitute additional grounds for termination.
6. CHARGES.
6.1 Agreement to Pay.
Lead Buyers hereby authorize Company to bill the credit card entered by Lead Buyers or to bill invoices to Lead Buyers for all Service-related charges. Charges are exclusive of sales, use, value added tax (VAT) or equivalent, ad valorem, personal property and other taxes, collection and/or payment of which are not the responsibility of Company. Lead Buyers further agree to provide Company with alternate credit card information in the event the credit card entered in Lead Buyers' registration is declined for any reason. If Lead Buyers' credit card is declined, they may be charged interest for overdue charges. Interest charged may be adjusted to the then-highest current rate allowable on California contracts. Company shall be entitled to recover all collection fees, including but not limited to attorneys fees, from Lead Buyers. Company's charges are non-refundable.
6.2 Calculation of Payment.
Company tracks Leads that are transferred by Lead Sellers or their Authorized Representatives to Lead Buyers or their Authorized Representatives. On the first and sixteenth day of each month, Company will calculate all payments owed by Lead Buyers. Company will bill Lead Buyers and distribute payments (after the appropriate deductions) to Lead Sellers based on the terms and conditions on Schedule A (attached hereto). Lead Sellers and their Authorized Representatives shall be responsible for negotiating and agreeing to a revenue share of such remaining amounts or other consideration, and User shall indemnify Company as to any dispute arising between Lead Seller and its Authorized Representative as a result of the Service pursuant to Section 13 of this Agreement. Company reserves the right to change the standard terms and conditions (which include the commission rate) in Schedule A at any time and to any level; all Leads transferred after such change will be subject to the new, changed rate. Lead Sellers and/or their Authorized Representatives will be provided 24 hours notice of an upcoming change and be allowed to cancel their Sell Campaigns, if desired.
6.3 Encryption Security.
Company will process credit card information using independent and secure third party credit card payment gateways. All payments will be made through a secure socket layer (SSL), a security protocol that provides data encryption, server authentication, and message integrity for connections to the Internet, to ensure that the submitted data is not transmitted over the Internet unencrypted and cannot be viewed by unauthorized individuals. Company only stores the last four digits of User's credit card information on its servers. Credit card information is stored securely on third-party payment gateway vendor(s).
6.4 Fraud.
Company maintains a policy of reporting instances of credit card fraud to the FBI and of prosecuting offenders to the full extent of the law.
7. SALESPORTAL.COM
The website, www.salesportal.com (the "Website"), provides internet-based access to the Service. Company grants User a non-exclusive, non-transferable, limited license to access and use the Website (including all versions and updates). User may not reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the Website or related software nor may User reproduce all or any portion of the components of the Website.
Certain software, such as browser software, used by User may not be capable of supporting the Website. The performance of the Website may also depend on User's computer equipment and internet connection. User understands that Company shall take all commercially reasonable efforts to make its Website and the Service available. However, the Company is not responsible for any damages or losses related to any system errors or interruptions affecting its Website and the processing of any Leads. User understands that the Website may be unavailable unexpectedly as a result of circumstances beyond its control or routine maintenance. User agrees not to attempt any action which may disrupt the Company's Website and Service, including transmitting any virus-infected files or software routines, bulk e-mail solicitations, or reverse engineering of any of the Company's programs or infrastructure.
8. NON-DISCLOSURE, LIMITED USE AND NON-CIRCUMVENTION.
User agrees to hold all Information that it discovered through the Service in strict confidence and shall not disclose any such Information to any third party. User may use the Information ONLY for its own benefit and shall take all reasonable measures to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of information provided by the Service. Furthermore, as an inducement to obtain approval to use the Service, User EXPRESSLY AGREES not to, directly or indirectly, negotiate, communicate, enter into an agreement with or transmit any information of any kind with any other User (whether registered or not) in any way related to buying, selling or otherwise exchanging Leads or any other Information that such User discovered as part of the Service through a means outside the Service (a "Circumventing Transaction"); for clarification purposes, a Circumventing Transaction shall not include any transactions between You and any parties with whom You already have a pre-existing business relationship; it includes all relevant transactions between You and other Users, whom You discovered by virtue of the Service. This non-circumvention provision shall apply to Users and their principals, agents and representatives, including but not limited to their employees, consultants, bankers, attorneys, accountants, assignees, heirs, surviving entities and transferees during the term of this Agreement and for two (2) years after termination of this Agreement. Any violation of this provision shall result in Company being entitled to collect commissions from violating User(s) at Company's then current rates for each and every Circumventing Transaction. Company shall also be entitled to collect all of its reasonable attorneys' fees, costs and other expenses in enforcing the terms of this provision.
9. PROHIBITION AGAINST ASSIGNMENT.
Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by any party without the prior written approval of Company.
10. WAIVER.
No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
11. LIMITED WARRANTY/DISCLAIMER OF WARRANTIES.
THE SERVICE OFFERED BY THE SERVICE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, OR SERVICES PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE. SPECIFICALLY, COMPANY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION OR SERVICES; AND (ii) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
12. LIMITATION OF LIABILITY AND REMEDIES.
Understanding the limited warranties by Company as set out above, the entire liability of Company, for any reason, shall be limited to the amount that User paid to Company for the Service for the 30 days prior to the commencement of any dispute. To the maximum extent permitted by applicable law, Company will not be liable to User for any indirect, special, incidental or consequential damages (including but not limited to damages for loss of business, loss of opportunity cost, loss of profits and the like), whether based on breach of contract, breach of warranty, tort (including negligence), Service liability or otherwise, even if Company and/or its agents and affiliates have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose. Some states do not allow the limitation and/or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to You.
13. INDEMNIFICATION.
You agree to defend, indemnify and hold harmless the Company, its affiliates, directors, officers, employees and agents to the fullest extent lawful against any and all damages (whether direct, consequential or otherwise), claims, liabilities, costs and expenses incurred (including, without limitation, all reasonable attorneys' fees, costs and other expenses), as a consequence of any acts by You undertaken in connection with the Company's Website and/or Service, including without limitation, those arising out of any breach of any representation or warranty, obligations hereunder, any transaction attempted by You through the Service, any dispute between You and any other Users and any claims brought by any person or entity relating to misuse or unauthorized use of data or other allegedly actionable content provided by You to Company.
14. ENTIRE AGREEMENT.
This Agreement and all terms and conditions (including, but not limited to, commissions and other information) as stated for the Service on the www.salesportal.com website constitute the entire agreement between You and Company relating to the Service and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Service or any other subject matter covered by this Agreement.
15. APPLICABLE LAW.
This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. You and Company each agree to submit to the personal and exclusive jurisdiction of the courts located in San Jose, California.
16. NOTICE AND COMMUNICATION.
Unless stated otherwise, all notice and communication with User shall be provided by e-mail to the e-mail address provided by the User during registration (and as updated by User thereafter) or by a posting on the Website. Notice shall be deemed to have been provided 24 hours after the e-mail is transmitted by the Company or the information is posted on the Website. If the Company receives a message that the User's e-mail is disconnected or is no longer valid, notice shall be deemed to have been provided 72 hours following the mailing of a letter to the User's address as set forth during registration (and as updated by User thereafter). Company may amend this Agreement by posting the amended Agreement with the revision date on the Website (including a link to such Amended Agreement containing the revision date on the home page and the login page), and Your continued use of the Service after such posting and notice shall constitute Your acceptance of the amended Agreement.
17. MANDATORY ARBITRATION.
ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND BETWEEN YOU AND COMPANY AND/OR ANY OF ITS EMPLOYEES, AGENTS, AFFILIATES OR OTHER REPRESENTATIVES ARISING OUT OF THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, STATUTE, OR TORT, INCLUDING FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY AND REGARDLESS OF THE DATE OF ACCRUAL OF SUCH CLAIM, CONTROVERSY OR DISPUTE SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION AS PRESCRIBED IN THIS SECTION.
A single arbitrator engaged in the practice of law will conduct the arbitration. The arbitrator will be selected according to the rules of the American Arbitration Association or JAMS or, alternatively, may be selected by agreement of the parties, who shall cooperate in good faith to select the arbitrator. The arbitration will be conducted by, and under the then-applicable rules of American Arbitration Association or JAMS, as applicable. All expedited procedures prescribed by the applicable rules will apply. Arbitration proceedings shall be held in San Jose, California. Any required hearing fees and costs shall be paid by the parties as required by the applicable rules or as required by applicable law, but the arbitrator shall have the power to apportion such costs as the arbitrator deems appropriate.
The arbitrator's decision and award will be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court with jurisdiction. If any party files a judicial or administrative action asserting a claim that is subject to arbitration and another party successfully stays such action or compels arbitration, the party filing that action must pay the other party's costs and expenses incurred in seeking such stay or compelling arbitration, including attorney's fees.
18. SEVERABILITY.
If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity or enforceability of the other provisions shall not be affected.
19. NO AGENCY.
The provisions of this Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, agency, franchise relationship or other business combination between You and the Company.
Schedule A Commission Rates and Payment Terms
This Schedule A ("Schedule A") is an addendum to the User Agreement (the "Agreement") and is a binding legal agreement between you (an individual person, a legal end-user entity and/or an authorized representative of a legal end-user entity or individual person), who will be referred to in this Schedule A as "You" and/or "User") and SalesPortal, Inc. ("Company") for access to and use of Company's online auction-based leads marketplace (the "Service"). If You register to use the Service or You otherwise access or otherwise use the Service, You agree to be bound by this Schedule A. If You do not agree to the terms of this Schedule A, do not register or use the Service.
Unless otherwise agreed to by Company, (i) Company will bill and charge Lead Buyer's (as defined in the Agreement) credit card on file for all payments owed on the first and sixteenth day of each month, or, for Lead Buyers, with credit terms, send an invoice (bearing a net 15 day payment term), and (ii) after receiving payments, Company will deduct its commission (30%) and distribute the remaining amounts via check to Lead Sellers (as defined in the Agreement) or their Authorized Representatives (as specified during registration) within fifteen (15) days. Company shall not pay Lead Sellers commissions until such time that Company is paid by the correlating Lead Buyer.
