SELLSCALE INC. TERMS OF SERVICE

Last Updated: December 17, 2022

These Terms of Service, including our Privacy Policy, which is incorporated herein by reference (together, this “Agreement”), is a legally binding contract between you and SellScale Inc. (“SellScale,” “us,” “we,” or “our”) regarding your use of the Service. References to “Customer,” “you”, and “your” refer to the individual accepting this Agreement, placing an Order, creating an Account, or otherwise using the Service. If the Service is being used on behalf of a company, organization, or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to such entity and its Affiliates. If you are a company, organization, or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement. 

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING OR OTHERWISE ENTERING INTO AN ORDER THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) THE SERVICE, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (THE DATE UPON WHICH YOU ACCEPT THIS AGREEMENT IS REFERRED TO AS THE “EFFECTIVE DATE”), YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND OUR PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY US AND BY YOU TO BE BOUND BY THESE TERMS. 

YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF US AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS MAY INCLUDE OPERATIONAL MESSAGES ABOUT YOUR USE OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.

1. The Service. The Service provides features and functionality relating to digital marketing and sales activities.

1. Permitted Use. Subject to the terms and conditions of this Agreement, the Documentation, and the applicable Order (including any Scope Limitations), SellScale will use commercially reasonable efforts to make the Service available, during the Subscription Term, to Customer and its Users solely for Customer’s internal business purposes. SellScale will not be liable to you for any unavailability of the Service due to scheduled downtime, emergency maintenance, and any unavailability caused by circumstances beyond SellScale’s reasonable control, including Force Majeure Events.
2. Users. Only Users may access or use the Service and each User must register an Account. By agreeing to this Agreement, you represent and warrant to us that: (a) you have not previously been suspended or removed from the Service; and (b) your registration and your use of the Service is in compliance with Laws. When registering for an Account, Customer and its Users will be required to provide SellScale with certain registration information (including, the Customer’s full corporate name, email address, other contact information, and certain social media credentials). Customer acknowledges and agrees, on behalf of itself and its Users, that the information provided to SellScale is accurate, complete, and not misleading, and that Customer will keep, and will require that its Users keep, such information accurate and up to date at all times. Each Account is personal to that User and may not be transferred, sold, or otherwise assigned to or shared with any other third party.  Each User must keep its login credentials for its Account confidential and not share them with anyone else. Customer is responsible and liable for its Users’ compliance with this Agreement and any acts or omissions associated with their Accounts. Customer will immediately notify SellScale at support@sellscale.com if it becomes aware of, or has a reasonable basis to believe that, any of its Users’ login credentials or their Accounts have been compromised or are no longer secure. SellScale collects and uses Account information as described in its Privacy Policy, but the Privacy Policy does not apply to Customer Data.
3. Restrictions. Customer and its Users will not (and will not permit anyone else to) do any of the following: (a) distribute, rent, lease, sell, sublicense, or otherwise permit third parties to access or use the Service; (b) use the Service on behalf of, or to provide any product or service to, third parties (e.g., as a service bureau); (c) use the Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code of the Service or other SellScale Technology used to provide the Service (except to the extent expressly permitted by Law, in which case Customer must provide SellScale with at least seven (7) days’ prior written notice before exercising its right under Law); (e) modify or create derivative works of the Service or copy any element of the Service (other than making a reasonable number of copies of the Documentation, without modification, to use the Service in accordance with this Agreement); (f) remove, alter, or obscure any proprietary notices from the Service; (g) perform or conduct any benchmarking or similar activities (including publishing benchmarks or performance information about the Service); (h) circumvent, disable, or otherwise interfere with the Service’s operation, security, or other technical features or measures of the Service or of the SellScale Technology (including any access or usage restrictions); (i) conduct any security or vulnerability testing of the Service; or (j) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious materials to or through the Service.
4. Prohibited Uses. Customer acknowledges and agrees that: (a) it will not use the Service with Prohibited Data or for High Risk Activities; and (b) the Service is not intended to meet any obligations under Law with respect to any such use (including HIPAA requirements). In no event will SellScale have any liability to Customer or to any third party for Prohibited Data or use of the Service in connection with High Risk Activities. Customer will use, and will require each of its Users to use, its best efforts to prevent any unauthorized access to or use of the Service and will immediately notify SellScale at support@sellscale.com if it becomes aware of, or has a reasonable basis to believe that, any unauthorized access to or use of the Service has occurred. If there is any unauthorized access or use by any third party who obtained access to the Service directly or indirectly through Customer or its Users (including through their Accounts), Customer will take, and will cause its Users to take, all steps necessary to terminate the unauthorized access or use by such third party. Customer and its Users will provide all cooperation and assistance requested by SellScale to prevent or terminate unauthorized access to or use of the Service.
5. Modifications to the Service. SellScale reserves the right to modify or discontinue all or any part of Service at any time (including by limiting or discontinuing certain features or functionality of the Service), temporarily or permanently, without notifying Customer (except that SellScale will provide Customer with thirty (30) days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). SellScale will have no liability for any change or modification to the Service or any suspension or termination of access to or use of the Service as a result thereof. Notwithstanding the foregoing, any such change or modification will apply on a going-forward basis with respect to any Order entered into or renewed after SellScale’s implementation thereof.

1. Support. Please contact SellScale at support@sellscale.com if you experience any issue with respect to the Service. SellScale is under no obligation to respond to or to resolve all or any issue reported to us or to provide any updates, upgrades, or other technical or maintenance support to Customer or any of its Users with respect to the Service.
2. Customer Data. Customer hereby grants SellScale a non-exclusive, royalty-free, fully paid-up, worldwide license, during the Subscription Term, to use, copy, store, transmit, publicly display, modify, and create derivative works of Customer Data to provide the Service and as otherwise permitted under this Agreement, including to collect, generate, and derive Usage Data. SellScale will implement reasonable, industry-standard technical and organizational measures designed to protect the Service and Customer Data from unauthorized access, use, or disclosure. Customer is solely responsible for its Customer Data, including its content and accuracy, and for backing up Customer Data. To the extent Personal Data is uploaded, transmitted, submitted, provided, or processed in connection with Customer’s or its Users’ use of the Service, each party agrees to comply with the DPA.
3. Suspension of Service. SellScale may immediately suspend access to the Service if: (a) SellScale reasonably believes, in its reasonable, good faith discretion, that Customer or any User has used the Service in an unauthorized manner or that Customer’s use of the Service exceeds any Scope Limitations; (b) Customer’s account is thirty (30) days or more overdue; or (c) SellScale reasonably believes, in its reasonable, good faith discretion, that Customer’s or its Users’ acts or omissions may pose a risk of harm to others or to the security, operation, availability, stability, or integrity of the Service or the SellScale Technology. Where practicable and at its reasonable, good faith discretion, SellScale will use reasonable efforts to provide Customer and its Users with prior notice of a suspension. SellScale will use reasonable efforts to restore Customer’s and its Users’ access to the Service once the basis of such suspension is resolved to SellScale’s satisfaction.
4. Third-Party Platforms; Third-Party Components. Customer or its Users may choose to use the Service with Third-Party Platforms, including to, among other things, create or log-in to Accounts and to export information (including Customer Data) to such Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider of such Third-Party Platform and are not governed by, or subject to, the terms and conditions in this Agreement. SellScale does not control and has no liability for Customer’s or its Users’ use of Third-Party Platforms, including their security, functionality, operation, availability, or interoperability or how the Third-Party Platforms or their providers use Customer Data. By enabling or otherwise using a Third-Party Platform with the Service, Customer hereby authorizes SellScale to access and exchange Customer Data with the Third-Party Platform on Customer’s behalf. Once Customer Data is shared, transmitted, disclosed, or otherwise provided to the provider of the Third-Party Platform, SellScale will have no control over such Customer Data. Furthermore, the Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
5. Commercial Terms.

1. Orders. Each Subscription Term will renew for successive terms equal in length to the Subscription Term unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term. Customer may allow any of its Affiliates to enter into its own Order(s) with SellScale under this Agreement; provided that SellScale may refuse to enter into any such Order(s) with any such Affiliate in its sole discretion. Such Affiliate will be deemed to be the “Customer” only for purposes of such Order(s), but Customer will at all times be solely liable for such Affiliate’s and its Users’ access to and use of the Service and their compliance with the terms and conditions set forth herein (including any fees due under any such Order(s)).
2. Fees. Fees to be paid by Customer are set forth in an Order or will otherwise be communicated to Customer by SellScale, and Customer will have an opportunity to review and accept the fees before they are charged to Customer.  All fees are denominated, and will be paid by Customer, in U.S. Dollars. Any and all fees, costs, and expenses payable under this Agreement or any Order are non-cancellable and non-refundable. SellScale may change the fees for the Service (including any feature or functionality of the Service), including additional fees or charges, and SellScale will notify Customer of any such changes before they apply. Except as may be otherwise agreed to by the parties in writing (including through an Order), SellScale’s then-current pricing applicable for the Service will apply to your use of the Service (including any renewal Subscription Terms) regardless of any discounted pricing in a prior Order or promotional offers previously extended to Customer. SellScale, at its sole discretion, may make promotional offers with different features and different pricing to any of SellScale’s other customers. These promotional offers, unless made to Customer, will not apply to Customer’s offer or this Agreement. 
3. Payment Terms. All payments by you to us are made through our third-party payment processing provider, and all payment information you submit will be processed in accordance with such provider’s privacy policy. Fees are invoiced on the schedule in the Order or as otherwise agreed upon by the parties in writing, and reimbursable expenses are invoiced in arrears. All fees and expenses are due within thirty (30) days of the invoice date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. Customer will reimburse any documented costs or expenses incurred by SellScale to collect any fees or expenses that are not paid when due (including reasonable attorneys’ fees). Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its payment of fees due under this Agreement, whether domestic or foreign (“Taxes”), other than Taxes based on SellScale’s income. All fees and expenses are exclusive of Taxes.

1. Warranties and Disclaimers.

1. Warranties. Each party represents and warrants to the other party that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of its obligations under this Agreement. Customer represents and warrants to SellScale that: (a) it will comply with all Laws; and (b) it has provided all notices to and obtained all necessary and sufficient rights, permissions, capacity, consents, and authority to fully comply with its obligations under this Agreement (including, without limitation, to submit, upload, transmit, or use Customer Data in connection with the Service and to grant SellScale the rights in Section 4.1 (Permitted Use) and in Section 9.2 (Feedback)) without violating Laws, infringing, misappropriating, or otherwise diluting any third-party rights (including intellectual property, publicity, privacy, or other proprietary rights), or breaching any terms or conditions in any agreement or privacy policies with a third party.
2. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 (WARRANTIES), THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SELLSCALE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO EACH OF THE FOREGOING, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SELLSCALE DOES NOT WARRANT THAT THE SERVICE, ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, IN EACH CASE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SELLSCALE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ITS USERS FROM THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR FROM THE SELLSCALE PARTIES (AS DEFINED BELOW) WILL CREATE ANY WARRANTY REGARDING ANY OF THE SELLSCALE PARTIES OR THE SERVICE OR ANY SUCH ADVICE OR INFORMATION THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. THE SELLSCALE PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE OR CUSTOMER’S OR ITS USERS’ DEALINGS WITH ANY OTHER SERVICE USER. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S AND ITS USERS’ USE OF ANY PORTION OF THE SERVICE IS AT YOUR AND THEIR OWN DISCRETION AND RISK, AND THAT THE SELLSCALE PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR ANY LOSS OF DATA. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 7 (WARRANTIES AND DISCLAIMERS) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 

1. Term and Termination.

1. Term; Termination. This Agreement starts on the Effective Date and continues until expiration or termination of all Subscription Terms. Either party may terminate this Agreement (including all Orders), effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach (a) is incapable of cure, or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Notwithstanding anything to the contrary in the foregoing, SellScale may terminate this Agreement (including all Orders), effective on written notice to Customer in the event Customer or any of its Users breach Section 1.3 (Restrictions), Section 1.4 (Prohibited Use), or Section 7.1 (Warranties).    
2. Effect of Termination. Upon expiration or termination of this Agreement or an Order: (a) Customer’s access to the Service will immediately cease; and (b) Customer will pay to SellScale any fees or other amounts that have accrued prior to the effective date of the termination. At the disclosing party’s request or upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information. Copies of Customer Data and other Confidential Information may be retained in SellScale’s standard electronic backups after deletion but will remain subject to this Agreement’s confidentiality restrictions and such backups copies may only be used for the sole purpose of ensuring compliance with this Agreement. SellScale shall not acquire any express or implied rights of ownership in or control of your Confidential Information other than the limited right to retain an electronic copy pursuant to this Section.
3. Survival. All rights to payment, causes of action, and the following Sections will survive any expiration or termination of this Agreement: 1.2 (Users), 1.3 (Restrictions), 1.4 (Prohibited Uses), 6 (Commercial Terms), 7 (Warranties and Disclaimers), 8.2 (Effect of Termination), 8.3 (Survival), 9 (Intellectual Property), 10 (Usage Data),  11 (Limitations of Liability), 12 (Indemnification), 13 (Confidentiality), 17 (General Terms), and 18 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have, including those available at law or in equity.

1. Intellectual Property. 

1. Reservation of Rights. Neither party grants the other party any rights or licenses not expressly set forth in this Agreement. Except as expressly set forth in this Agreement, as between the parties, Customer retains all intellectual property and other proprietary rights in Customer Data. Except as expressly set forth in this Agreement, as between the parties, SellScale retains all intellectual property and other proprietary rights in the Service and SellScale Technology, including any modifications or improvements to any of the foregoing. 
2. Feedback. If Customer or any of its Users provides SellScale with feedback or suggestions relating to the Service or any other SellScale offerings (including Trials and Betas) (“Feedback”), Customer hereby grants SellScale an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. SellScale will have no obligation to provide Customer or its Users with attribution for any Feedback provided to SellScale. From time to time, SellScale may contact Customer and/or its Users to provide SellScale with, and Customer will use commercially reasonable efforts to provide SellScale, certain testimonials, case studies, and success stories, regarding its and their use of the Service (“Testimonials”), and any data or information provided by Customer and/or its Users in connection with the Testimonials is deemed to be Feedback. 

1. Usage Data.  SellScale may collect, generate, and derive Usage Data for SellScale’s lawful business purposes, including to: (a) use it to monitor, operate, improve, and support the Service and its performance, security, and stability; (b) create analytics, benchmarking, and performance data and reports; (c) track usage for billing purposes; and (d) develop new products and services. Subscriber will not interfere with the collection of Usage Data. As between the parties, SellScale owns all right, title, and interest, including all intellectual property and other proprietary rights in and to the Usage Data. SellScale will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been (a) de-identified so that it does not individually identify Customer, its Users, or any other person, or (b) aggregated with usage data from other SellScale customers. 
2. Limitations of Liability.

1. Consequential Damages Waiver. SUBJECT TO SECTION 13.4 (EXCLUSIONS), TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTYHAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. 
2. Liability Cap. SUBJECT TO SECTION 13.4 (EXCLUSIONS), TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT PAID AND PAYABLE TO SELLSCALE FOR YOUR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE FIRST GIVING RISE TO THE CLAIM; AND (b) US $100.00.
3. Nature of Claims and Failure of Essential Purpose. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 (LIMITATIONS OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4. Exclusions. The limitations of liability in this Section 11 (Limitations of Liability) will not apply to: (a) breach of the confidentiality obligations set forth in Section 13 (Confidentiality); (b) Customer’s express payment obligations under this Agreement; (c) breach by Customer or its Users of Section 1.4 (Prohibited Uses); (d) a party’s gross negligence, willful misconduct, or fraud; or (e) to Customer’s indemnification obligations under Section 12.1 (Indemnification by Customer).

1. Indemnification.

1. Indemnification by Customer. Customer will defend or at its option settle any claims, demands, or actions brought by a third party (“Claims”) against SellScale, its Affiliates, and their respective directors, officers, employers, agents, successors and assigns (collectively “SellScale Parties”) arising out of or in connection with: (a) the Customer Data; (b) its or its Users’ violations of Law, fraud, gross negligence, or willful misconduct; or (c) its or its Users’ breach or non-fulfillment of any representation, warranty, or covenant in this Agreement. The applicable SellScale Party will provide Customer with: (a) reasonable written notice of the Claim (provided that any delay in providing notice will not relieve Customer of its indemnity obligations under this Agreement unless, and only to the extent, the Customer was prejudiced by the delay); (b) the exclusive right to control and direct the investigation, defense and settlement of the Claim (provided that no settlement admitting liability on the part of the SellScale Party may be made without the express written consent of the SellScale Party); and (c) reasonable assistance and cooperation at Customer’s sole cost and expense. SellScale may participate in a Claim with its own counsel at its own expense. Customer will pay, on the SellScale Party’s behalf, all damages awarded in a final judgment or settlement of such Claims (including reasonable attorney’s fees, interest, and penalties to the extent included therein). 
2. Indemnification by SellScale. SellScale will defend or at its option settle any Claims against Customer, its Affiliates, and their respective directors, officers, employers, agents, successors, and assigns (collectively “Customer Parties”) alleging that the authorized use of the Service infringes any U.S. patent, copyright, or trade secret right of a third party (“Infringement Claim”) and SellScale will pay any final judgments awarded in any such Infringement Claim defended by SellScale or settlements entered into by SellScale. The applicable Customer Party will provide SellScale with: (a) reasonable written notice of the Infringement Claim (provided that any delay in providing notice will not relieve SellScale of its indemnity obligations under this Agreement unless, and only to the extent, SellScale was prejudiced by the delay); (b) the exclusive right to control and direct the investigation, defense and settlement of the Infringement Claim (provided that no settlement admitting liability on the part of the Customer Party may be made without the express written consent of the Customer Party); and (c) reasonable assistance and cooperation at SellScale’s sole cost and expense. Customer may participate in a claim with its own counsel at its own expense. Notwithstanding the foregoing, SellScale will have no obligation under this Section for Infringement Claims arising from: (a) combination of the Service with other software, hardware, products, or technology not provided by SellScale; (b) any modification of the Service, in whole or in part, by anyone other than SellScale; (c) any unauthorized use of the Service; or (d) use by Customer or its Users of any specified release of the Service after SellScale notifies Customer that continued use may subject Customer to an Infringement Claim, provided SellScale provides Customer with a replacement release. If any portion of the Service becomes, or in SellScale’s reasonable opinion is likely to become, subject to an Infringement Claim, then SellScale may at its sole option and expense: (a) procure for Customer the right to continue using the Service; (b) replace the Service with a non-infringing equivalent; or (c) in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and the licenses granted herein. THIS SECTION 12.2 STATES THE ENTIRE LIABILITY AND OBLIGATION OF SELLSCALE, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE.

1. Confidentiality. 

1. Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. SellScale’s Confidential Information includes the terms and conditions of this Agreement, the Documentation, the SellScale Technology, Templates, Feedback, Usage Data, and any technical or performance information about the Service. 
2. Obligations. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, (sub)contractors and other representatives (“Representatives”) having a legitimate need to know such Confidential Information in order to perform or evaluate the receiving party’s obligations under this Agreement; provided that (a) the receiving party will remain liable for the acts and omissions of such Representatives with respect to the Confidential Information of the disclosing party, and (b) such Representatives are bound by confidentiality obligations or professional obligations prohibiting the unauthorized disclosure or use of Confidential Information that are at least as protective as the terms of this Section 13. Nothing in this Agreement prohibits the receiving party from making disclosures of the disclosing party’s Confidential Information, including disclosures of Customer Data, if required by Law, subpoena or court order; provided (if permitted by Law) the receiving party notifies the disclosing party in writing prior to any such disclosure, provides the disclosing party with an opportunity to obtain, and reasonably cooperates in any effort by the disclosing party to obtain, a protective order or confidential treatment of the Confidential Information to be disclosed. For the avoidance of doubt, Customer and its Users may not copy, modify, distribute, reproduce, create derivative works of, use, or otherwise exploit the Templates except on or through the Service (and not separate and apart therefrom).  
3. Exclusions. The confidentiality obligations set forth in this Section 13 do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt from the disclosing party under this Agreement without an obligation to maintain its confidentiality, (c) it rightfully received from a third party without an obligation to keep such information confidential, or (d) it independently developed without use of or reference to the disclosing party’s Confidential Information. 
4. Remedies. The receiving party agrees that any breach or threatened breach of this Section 13 may cause substantial, irreparable harm to the disclosing party for which damages would be an inadequate remedy and, as such, the disclosing party may seek equitable relief, in addition to other remedies available at law or in equity, for any breach or threatened breach of this Section 13 without the necessity of proving actual damages or posting any bond.

1. Trials and Betas. If Customer or any of its Users receives access to the Service or any features or functionality relating thereto on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), any access to or use of the Trials and Betas by Customer or its Users is permitted only for Customer’s internal evaluation and testing purposes during the period designated by SellScale (not to exceed thirty (30) days unless otherwise agreed upon by the parties in writing, including by way of an Order). These Trials and Betas will be considered part of the Service and all provisions of this Agreement relating to the Service will apply to these Trials and Betas as well. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason (except to the extent Customer is to pay SellScale any fees for Customer’s access to or use of the Trials and Betas, in which case, each party’s termination rights will be governed by and subject to Section 8.1). Notwithstanding Section 6.1, access to or use of Trials and Betas will not renew for an additional Subscription Term and will automatically terminate upon the expiration of then-current Subscription Term for such Trials and Betas, unless otherwise agreed to in writing by the parties. Trials and Betas may be inoperable, incomplete, or include features that SellScale may never release, and their features and performance information are deemed to be SellScale’s Confidential Information. SellScale may suspend Customer’s and its Users’ access to the Trials and Betas at any time (except to the extent Customer is to pay SellScale any fees for Customer’s access to or use of the Trials and Betas, in which case, SellScale’s right to suspend access to the Trials and Betas will be governed by and subject to Section 4). Customer’s and its User’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SELLSCALE PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED $50.00 (USD). 
2. Publicity. Neither party may make any public announcement relating to this Agreement except with the other party’s prior written consent or as required by Laws. SellScale may reference Customer’s name and include Customer’s trademarks, logos, and other branding elements (“Marketing Materials”) in SellScale’s customer lists, promotional materials, and in connection with its marketing, advertising, promotional, or sales practices or activities; provided that Customer may require that SellScale cease further use of Marketing Materials upon written notice to SellScale (except that SellScale will not be obligated to cease its use of any tangible materials containing, embodying, or including Marketing Materials that are in existence at the time of SellScale’s receipt of such notice from Customer). 
3. Modifications. SellScale may modify this Agreement from time to time with notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order unless SellScale indicates an earlier effective date. If SellScale requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to SellScale, in which case SellScale will provide Customer a refund of any pre-paid Service fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify SellScale of its objections within thirty (30) days after SellScale’s notice of the modified Agreement. Once the modified Agreement takes effect, Customer’s continued use of the Service constitutes its acceptance of the modifications. SellScale may require Customer to click to accept the modified Agreement.
4. General Terms.

1. Assignment; Relationship. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that SellScale may assign this Agreement without Customer’s consent in connection with a merger, change of control, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any attempted assignment in violation of this Section 17.1 will be null and void and of no effect. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. SellScale may use subcontractors and permit them to exercise SellScale’s rights and to perform SellScale’s obligations on behalf of SellScale, but SellScale remains responsible for their compliance with this Agreement. The parties are independent contractors, not agents, partners, or joint venturers.
2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The parties hereby exclusively and irrevocably submit to, and waive any objection against, and shall not contest, the personal jurisdiction of the state and federal courts located in Santa Clara County, California with respect to any matter relating to this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
3. Communications; Notice. You agree that SellScale and those acting on our behalf maysend you text (SMS) messages at the phone number you provide us. These  messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM SELLSCALE, YOU CAN EMAIL support@sellscale.com OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM SELLSCALE, YOU CAN EMAIL support@sellscale.com OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive [calls and] text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. Your agreement to receive marketing [calls and] texts is not a condition of any purchase on or use of the Service. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. Any notice to, or consent required of, SellScale under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), or (c) one day after dispatch if by a commercial overnight delivery service. Notices to SellScale must be provided to 12730 Lantana Ave., Saratoga, California 95070 or to such other address as SellScale may specify in writing.
4. Entire Agreement. This Agreement (which includes all Orders and, if applicable, the DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement. The terms in any Customer purchase order, ordering document, or business form will not amend or modify this Agreement and are expressly rejected by SellScale; any of these Customer documents are for administrative purposes only and have no legal effect.
5. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect. The failure to require performance of any provision will not affect SellScale’s right to require performance at any other time after that, nor will a waiver by SellScale of any breach of any provision of this Agreement be a waiver of any subsequent breach or a waiver of the provision itself.
6. Force Majeure. SellScale is not liable for any delay or failure to perform any of its obligation under this Agreement due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster (each a “Force Majeure Event”).
7. Export. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (c) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.
8. Government End-Users. Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.

1. Definitions.

“Account” means an account enabling a User to access and use the Service through User login credentials. 

“Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity

“Customer Data” means any data, content, information, or materials that Customer (including its Users) submits, uploads, or transmits to the Service, including from Third-Party Platforms.

“DPA” means the Data Protection Addendum (available at [LINK]).

“Documentation” means SellScale’s usage guidelines and standard technical documentation for the Service that are provided or otherwise made available by SellScale.

“High Risk Activities” means activities where use or failure of the Service could lead to death, property damage, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.

“Laws” means all applicable local, state, federal and international laws, regulations, and conventions.

“Order” means an order for access to the Service referencing this Agreement that is executed by the parties or that Customer or any of its Users completes through a SellScale-provided online order flow.

“Personal Data” means any information or data that constitutes “personal data,” personal information,” “personally identifiable information,” “nonpublic personal information,” or any similar concept under the applicable laws, rules, and regulations of any relevant jurisdiction governing privacy, data protection, security, or the processing of data or information, where such information is contained within Customer Data and is processed by SellScale in connection with this Agreement.

“Privacy Policy” means the Privacy Policy (available at [LINK]).

“Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers or (f) any data similar to the above protected under foreign or domestic Laws.

“SellScale Technology” means any: (a) works of authorship, including computer programs (whether in source code or in executable code form), architecture, technical information, hardware, and equipment; (b) inventions (whether or not patentable), discoveries and improvements; (c) proprietary and confidential information, trade secrets and know-how; (d) databases, data compilations, and collections and technical data; (e) methods, procedures, practices, protocols, techniques, and processes; and (f) any other technology; in each case, which is a tangible embodiment of such technology and used by SellScale to provide or otherwise make available the Service.

“Service” means SellScale’s proprietary, digital marketing service (including the Documentation but excluding Third-Party Platforms).

“Scope Limitations” means any limitations on the scope of the rights granted to you under this Agreement with respect to the Service that is specified in the Order Form.

“Subscription Term” means the term for Customer’s use of the Service as identified in an Order.

“Templates” means the models, layouts, designs, and other templates for any marketing or sales communications provided or otherwise made available through the Service. 

“Third-Party Platform” means any platform, add-on, service, or product not provided by SellScale that Customer elects to integrate or enable for use in connection with the Service.

“Usage Data” means any performance, analytical, or usage data or information relating to Customer’s (including its Users’) access to or use of the Service that is generated or otherwise collected by the Service, but excluding Customer Data.

“User” means any employee or contractor of Customer that is authorized by Customer to use the Service.

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