SALESPORTAL SERVICE AGREEMENT
May 21, 2013
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 Sales Portal, Inc. ("SalesPortal") for access to and use of SalesPortal's online partnership 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.
1. THE SERVICE.
You may register online for free at the Website (as defined below) or with our internal Client Success team members. Your registration must be approved by SalesPortal before You will be able to use the Service. After approval, Users who are call transfer sellers ("Sell-Side Partners") and/or their authorized representatives ("Authorized Representatives") (e.g. contact centers) may create campaigns to sell call transfers of prospective third-party customers ("Sell Campaigns") and Users who are call transfer buyers ("Buy-side Partners") and/or their Authorized Representatives (e.g. advertising/media agencies) may create campaigns to buy call transfers ("Buy Campaigns") by bidding on Sell-side Partners' phone transfers of prospective third-party customers ("Media"). If multiple Buy-side Partners bid on a Sell-side Partner's Media, SalesPortal's proprietary algorithms will determine the most relevant Buy-side Partner and also will optimize the Sell-side Partner's revenue by matching that Sell-side Partner with a Buy-side Partner or several Buy-side Partners. SalesPortal 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 between Sell-side Partners and Buy-Side Partners (or their respective Authorized Representatives). User acknowledges and agrees that SalesPortal does not have any responsibility to report, calculate, determine or anticipate the payment of any taxes, which may result for transactions between User and other parties. User understands and agrees that User (whether it be a Sell-side Partner, Buy-side Partner, 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 Website and Service and shall indemnify SalesPortal for any violation thereof pursuant to this Agreement. SalesPortal hereby indemnifies and holds harmless User from and against any and all claims by governmental entities and other parties regarding any and all taxes owed by SalesPortal regarding this Agreement.
SalesPortal is constantly improving the Service. During the pre-registration process or anytime thereafter, SalesPortal may record any web or telephonic conversation for quality and training purposes. By registering for the Service, you consent to any such recording. You acknowledge and agree that SalesPortal may make non-material changes to the Service without prior notice to You. In addition, SalesPortal 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 SalesPortal, for any reason or no reason at all. SalesPortal may stop (permanently or temporarily) providing the Service (or any features within the Service) at its sole discretion. You may also stop using the Service at any time, but will remain obligated to pay SalesPortal any outstanding balances owed as of the last day of service and to abide by any provisions that survive termination as set forth herein.
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 and Canada, although SalesPortal 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 SalesPortal 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. SalesPortal reserves the absolute right to review the status and compliance of any User with the terms of this Agreement and to suspend or terminate a User's use of the Service at any time. You acknowledge and agree that if SalesPortal disables access to Your account, You may be prevented from accessing the Service and Your account. Unless expressly permitted by SalesPortal 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 SalesPortal 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, or any portion thereof. You understand that SalesPortal will primarily communicate with You about the Service via e-mail and in-product messages. SalesPortal 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 Media sold and bought. SalesPortal 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 Agreement, to protect the rights of SalesPortal, 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 SalesPortal. SalesPortal reserves the right, at its sole discretion, to amend, edit, remove or otherwise block any material posted by a User which may, in SalesPortal's sole discretion, violate any state, federal or local law or violate any aspect of this Agreement or in order to limit SalesPortal's liability. However, SalesPortal does not assume responsibility for verifying the material, content and information on the Service and You shall be fully responsible (and shall indemnify SalesPortal 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.
We assume no responsibility for the timeliness, deletion, misdelivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to our Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, You must provide and are responsible for all equipment necessary to access our 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 Buy-side Partners and/or Sell-side Partners) are not a person and/or entity barred from receiving our Service under the laws of the United States or any other applicable jurisdiction;
- You (and/or, in the case of an Authorized Representative, Your customers or principals that are Buy-side Partners and/or Sell-side Partners) take sole and full responsibility for collecting and/or paying (and SalesPortal is not responsible for withholding) any state, federal, local or other taxes (e.g. sales tax, use tax) required by law to be collected or paid by You 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 Buy-side Partners and/or Sell-side Partners) 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) and other regulations or FTC guidelines 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 Buy-side Partners and/or Sell-side Partners) 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 Buy-side Partners and/or Sell-side Partners) to SalesPortal in connection with the Service is properly authorized and not an infringement of the copyright, trademark or any other intellectual property of others, is not illegal, obscene, threatening, defamatory, invasive of privacy, in violation of any contractual or fiduciary relationships, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, malicious computer code, files or software, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam.";
- You (and/or, in the case of an Authorized Representative, Your customers or principals that are Buy-side Partners and/or Sell-side Partners) 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 SalesPortal.
3. SELL-SIDE PARTNER OBLIGATIONS.
3.1 Creating Sell Campaigns.
When creating a Sell Campaign, a Sell-side Partner or its Authorized Representative agrees that it is offering to sell its Media to any Buy-side Partner or its Authorized Representative who satisfies the Service requirements and Sell-side Partner's and its Authorized Representative's requirements. Such Sell-side Partner 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 Buy-side Partners and their Authorized Representatives rely on such information when bidding for Media. Notwithstanding the foregoing, nothing in this Agreement shall be construed to be a guarantee as to a minimum number of Media that You will provide. Sell-side Partners and their Authorized Representatives are solely responsible for the accuracy, completeness and validity of all the information in their Sell Campaigns. Each Sell-side Partner, by itself or through its Authorized Representative, represents and warrants that all information provided in the Sell Campaigns is accurate and truthful to the best of its knowledge, subject to the disclaimer that this warranty does not apply as to the truthfulness of information provided by the consumer. Sell-side Partners and their Authorized Representatives also agree that they will only transfer Media to a Buy-side Partner or its Authorized Representative if the Media satisfies the Buy-side Partner's qualification criteria, including but not limited to, Buy-side Partner's qualification question(s) (if applicable), geographic constraints, and/or other filters listed in each Buy-side Partner's profile on the Service. Sell-side Partners and/or their Authorized Representatives will not get paid for any Media that do not satisfy the terms and obligations of this Agreement. Sell-side Partners and/or their Authorized Representatives will not get paid for any Media that are connected with the Buy-side Partner for less than 20 seconds. Call duration shall be determined by the Service, which shall take precedence over any other data collection or monitoring means. Sell-side Partners and their Authorized Representatives understand and agree that SalesPortal, at its sole discretion, may take any reasonable action it deems necessary to review and suspend a Sell-side Partner's and/or its Authorized Representative's account.
3.2 Managing Sell Campaigns.
Sell-side Partners and their Authorized Representatives may manage (pause, restart, delete or edit) their Sell Campaigns using the Website. Sell-side Partners and their Authorized Representatives may also use the Website to edit preferences, select or de-select specific Buy-side Partners 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.
Sell-side Partners must digitally record the portion of the calls wherein the customer/caller's consent is obtained for his/her acceptance of the Buy-side Partner's offer that was presented as well as for the transfer of the Media, regardless of the mechanism of such Media transfer. These digital call recordings must be stored for easy access for future playback. Sell-side Partners must also ensure that their digital call recording is terminated after the Media has been transferred to the Buy-side Partner.
4. BUY-SIDE PARTNER OBLIGATIONS.
4.1 Creating Buy Campaigns.
When creating a Buy Campaign, a Buy-side Partner or its Authorized Representative must provide its requirements, including but not limited to a detailed description of its product or service, Media qualification question(s), phone number to transfer Media to, hours of operation of the Buy-side Partner's contact center, geographic constraints for Media, and the maximum number of concurrent calls that they are able to process emanating from Buy-side Partner's Buy Campaigns. SalesPortal's proprietary algorithm uses such information in its matching process. Buy-side Partners and their Authorized Representatives are solely responsible for the accuracy, completeness and validity of all information provided by them. Each Buy-side Partner or its Authorized Representative represents and warrants that all information provided in the Buy Campaigns is accurate and truthful. Buy-side Partners and their Authorized Representatives understand and agree that SalesPortal, at its sole discretion, may take any action it deems necessary to review, and suspend a Buy-side Partner's account. Buy-side Partners and their Authorized Representatives may manage (pause, re-start, delete or edit) their Buy Campaigns via the Website. Buy-side Partners and their Authorized Representatives may also use the Website to stop buying Media from Sellers or change Buy Campaign attributes, such as hours of operation and geographic constraints.
4.2 Receiving Media.
A Buy-side Partner shall not receive Media until such Buy-side Partner is connected to a Sell-side Partner ("connected" shall mean that the bid for at least one Media type is above the Sell-side Partner's reserve price). Notwithstanding the above, a connected Buy-side Partner is not guaranteed to receive any Media, and SalesPortal has the sole right to match and manage Media as it deems appropriate. Once a Sell-side Partner and/or its Authorized Representative transfers Media (as defined and agreed to in advance between the Buy-side and Sell-Side Partners as either (i) a live phone transfer of the Media that is connected for a minimum of 20 seconds, or (ii) a data record of a scheduled call back for the Media or (iii) the email address of the Media), the connected Buy-side Partner or its Authorized Representative is obligated to pay for it as set forth herein. Notwithstanding the above, neither SalesPortal nor Sell-side Partner (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 SalesPortal nor Sell-side Partner represents or warrants that the transferred Media will result in any successful sales conversions for the Buy-side Partner, but Sell-side Partner does warrant that the transferred media constitutes good-faith customer prospects for the Buy-side Partner or its Authorized Representatives; Buy-side Partner or its Authorized Representative(s) is encouraged to test the Service to establish Buy-side Partner's level of satisfaction with the Service. The live phone transfer Media shall be transferred to the phone number submitted by the Buy-side Partner or its Authorized Representative while creating its Buy Campaign. Buy-side Partner or its Authorized Representative, not SalesPortal or Sell-side Partner (or its Authorized Representative), shall be responsible for the proper functioning of Buy-side Partner's submitted phone numbers and for ensuring that live Buy-side Partner's sales agents are available to receive calls during the time periods provided by Buy-side Partner or its Authorized Representative. Unless specifically approved in advance by Sell-side Partner, Buy-side Partners 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-Media and e-mail address Media shall be provided in real-time to Buy-side Partner or its Authorized Representative via in-product reports. Buy-side Partner acknowledges and agrees that Data records of scheduled callback Media and e-mail address Media are provided solely for the purpose of contacting the customer/caller with the Buy-side Partner Offer.
5.1 SalesPortal Intellectual Property.
SalesPortal intellectual property ("SalesPortal 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. SalesPortal IP may be created by one of more of SalesPortal'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 Website or Service ("Feedback"). All right, title and interest in any SalesPortal IP shall belong to SalesPortal and shall be subject to the conditions of this Agreement. User hereby irrevocably assigns to SalesPortal all right, title and interest User may acquire in any SalesPortal IP. SalesPortal may, at its option, file an application for intellectual property protection for SalesPortal IP. If any such SalesPortal IP is created with User's participation, User agrees to cooperate with SalesPortal 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. SalesPortal IP is the sole and exclusive property of SalesPortal, unless otherwise stated and may not be used without the prior written consent of SalesPortal.
Only registered Users shall obtain access to the Service, which may incorporate SalesPortal 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 SalesPortal (collectively "Features") which may change from time to time. Access to certain Features may be restricted. You grant to SalesPortal a non-exclusive, worldwide, royalty-free license to use and publicly display Your name, logo or other identifying mark on the Website or other marketing materials for the sole purpose of SalesPortal identifying You as its client. At any time, You may request that Company cease all use of Your name, logo, or other marks, and upon receiving such notice. If this Agreement and Your use of the Service is terminated, SalesPortal shall use reasonable efforts to promptly remove same from the Website and marketing materials and discontinue any other use.
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 SalesPortal' 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 SalesPortal. Sell-side Partners shall retain rights to all customer/caller information provided to them by their customers/callers, and Buy-side Partners shall obtain rights to use all customer/caller information provided to them via the Media as authorized by law. SalesPortal 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). Nothing herein shall prevent You for retaining customer information for purposes of fulfilling your customer orders or in accordance with Your document retention policies provided no federal, state, or local law or regulation is violated in doing so.
5.5 SalesPortal Obligations.
SalesPortal shall perform services: (a) in a good, workmanlike and professional manner in accordance with industry practices and standards and shall comply with all applicable laws, regulations, orders and decrees, (e.g. the Telephone Consumer Protection Act (TCPA), the Federal Trade Commission's (FTC) Telemarketing Sales Rule, and the CAN-SPAM Act) and other regulations or FTC guidelines relating to telemarketing, telesales, electronic mail marketing and related activities.
5.6 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.
6.1 Agreement to Pay.
SalesPortal tracks Media that are transferred by Sell-side Partners or their Authorized Representatives to Buy-side Partners or their Authorized Representatives, and on the fifteenth and last day of each month, will calculate all Service-related charges owed by Buy-side Partners. SalesPortal will generate invoices for such charges, and will either automatically charge the Buy-side Partner's credit card on file (which User hereby authorized SalesPortal to do) for all payments owed, or for Buy-side Partners with pre-approved credit terms, electronically transmit an invoice to Buy-side Partner bearing NET 30 day payment term, or other payment terms pre-approved by the Buy-side and Sell-side Partners and documents in the campaign on the Service. 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 SalesPortal. Buy-side Partners agree they are responsible for any fees charged by their bank or credit card company for any transactions billed through the Service, as well as any interest incurred on such transactions. Buy-side Partners further agree to provide SalesPortal with alternate credit card information in the event the credit card entered in Buy-side Partners' registration is declined for any reason. If Buy-side Partners' credit card is declined or Buy-side Partners do not pay within the agreed-to payment term, they may be charged interest for overdue charges. Interest charged may be adjusted to the then-highest current rate allowable on California contracts. SalesPortal shall not be liable or responsible to Sell-side Partners for non-payment by Buy-side Partners. However, SalesPortal may (but is not obligated to) use reasonable efforts to collect amounts. In such event, SalesPortal shall be entitled to recover all collection fees, including but not limited to reasonable attorneys' fees, from Buy-side Partners. If SalesPortal's attempts are unsuccessful, security interest of non-paid amount shall be assigned to Sell-side Partner automatically after such non-payment is more than 180 days past due. SalesPortal's charges are non-refundable; however, SalesPortal will offer credits for valid disputes submitted by User by no later than the end of the next billing cycle.
6.2 Calculation of Payment.
After receiving payments from Buy-side Partners, SalesPortal will deduct its fee and distribute the remaining amounts via check (or other method pre-arranged between SalesPortal and the Sell-side Partner) to Sell-side Partners or their Authorized Representatives (as specified during registration) within fifteen (15) days after payment. SalesPortal shall not pay Sell-side Partners until such time that SalesPortal is paid by the correlating Buy-side Partner. Sell-side Partners and their Authorized Representatives shall be responsible for negotiating and agreeing to a revenue share of such remaining amounts or other consideration (with such consideration to be determeind by Sell-side Partner in accordance with applicable law or regulation, and User shall indemnify SalesPortal as to any dispute arising between Sell-side Partner and its Authorized Representative as a result of the Service pursuant to Section 13 of this Agreement. SalesPortal reserves the right to change the standard terms and conditions (which include the commission rate) at any time and to any level; all Media transferred after such change will be subject to the new, changed rate. Sell-side Partners 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.
SalesPortal 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. SalesPortal 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).
SalesPortal maintains a policy of reporting instances of credit card fraud to the FBI and of prosecuting offenders to the full extent of the law.
The website, www.salesportal.com
(the "Website"), provides internet-based access to the Service. SalesPortal 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 SalesPortal shall take all commercially reasonable efforts to make its Website and the Service available. However, SalesPortal is not responsible for any damages or losses related to any system errors or interruptions affecting its Website and the processing of any Media. 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 theWebsite and Service, including transmitting any virus-infected files or software routines, bulk e-mail solicitations, or reverse engineering of any of SalesPortal'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 Media 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 You and all other users, and each parties' 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 or users 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.
Both parties agree to keep confidential all information designated as confidential by either party hereunder ("Confidential Information") when disclosed to the other party. "Confidential Information" shall mean all information disclosed to a party or to which a party or its employees are exposed or provided which relates to the other party's past, present, future business plans, activities, marketing plans, ad campaigns and all other information, or that of the other party's clients. Each party shall hold all such Confidential Information in trust and confidence for the othe rparty, and agrees that it and its employees will not, during or after the termination of this Agreement, disclose to any person, firm, or corporation, nor use for its own business or benefit, any information or knowledge obtained or generated by it during the performance of this Agreement.
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 SalesPortal.
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 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, SALESPORTAL 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, WITHOUT LIMITATION, 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 SalesPortal as set out above, with the exception of indemnification obligations hereunder, the entire liability of either party, for any reason, shall be limited to the amount of money that User and SalesPortal exchanged by virtue of the Service for the 30 days prior to the commencement of any dispute. To the maximum extent permitted by applicable law, neither party will not be liable to the other 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 a party 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.
You agree to defend, indemnify and hold harmless SalesPortal, 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 or inaction by You in connection with the 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 SalesPortal.
SalesPortal agrees to defend, indemnify and hold harmless the User, its affiliates, directors, officers, employees and agents to the fullest extent lawful against any and all third party 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 or inaction by SalesPortal in connection with the Website and/or Service, including without limitation, those arising out of SalesPortal's material breach of any representation or warranty, obligations hereunder, and any claims of third parties that the Service or the Website infringe any United States patent issued as of the date of User registration on the Website.
As a condition of these indemnification obligations, each party shall give prompt written notice to the other party with respect to any claim pursuant to this Section 13 and, upon request, will promptly forward to the other party, copies of all documents received or created in connection with the claim or litigation. The indemnified party shall reserve the right to secure counsel and manage its defense, although such party shall not agree to any settlement of any claim or litigation without the written consent of the indemnifying party, which shall not be unreasonably withheld or delayed. The obligations and rights of each party under this Section 13 shall survive the expiration or termination of this Agreement.
14. ENTIRE 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 SalesPortal 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 SalesPortal or the information is posted on the Website. If SalesPortal 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). SalesPortal 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 SALESPORTAL 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 if SalesPortal is the defending party, and the city of Your corporate facility if You are the defending party. 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.
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 SalesPortal.