Master Subscription Agreement

Last Modified: August 15, 2024

Improveit! 360 LLC (“Company”) requires users of its websites and services, including any entity executing an order form (“Customer”) that references these terms to accept and adhere to these terms and conditions (the “Agreement”). This Agreement governs the purchase and use of Company’s software and services (the “Services”) and is accepted by executing an order form that references this Agreement or by using or accessing Company’s services. Company may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Company. If Customer continues to use or receive the services following such period, the updated Agreement will be deemed accepted.

1. Order Form.
Services will be ordered by Customer pursuant to executed order forms (each, an “Order Form”). Each Order Form will include the specific services being ordered and the associated fees and any additional terms as applicable. Upon execution by both parties, each additional Order Form will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Customer’s subsidiaries or affiliates may also order services under this Agreement by entering into an Order Form signed by such subsidiary or affiliate and Company and agreeing to be bound by the terms of this Agreement and such Order Form.

2. Software/Service.
2.1. Rights for Use. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable license for the Term of this Agreement, and only for purposes of operating its business and for its own customer relations management, to access and use, through the maximum number of employees or agents identified in the applicable Order Form (each an “Authorized User”) (a) the Services made available by the Company via the internet, together with any modifications, enhancements, or corrections thereto that Company may make generally available to its customers from time to time, and (b) any user manuals and on-line help information for the Services that Company may create and make generally available to its customers from time to time, whether in print, or in digital form over the internet (“Documentation”). Notwithstanding anything to the contrary, Customer may download, copy, view and print content created using the Services for Customer’s internal use only; provided, that all trademark, service marks, logos or other intellectual property notices are not removed or altered in any way. Customer acknowledges that access to the Services requires access to the Internet and to third-party software applications, which may be subject to additional terms and fees by such software application providers. Customer acknowledges that Company may, in its sole and absolute discretion, offer certain beta or pre-release software or features for use, which use will be subject to Customer’s acceptance of additional terms and conditions.

2.1.1. Customer acknowledges that portions of the software platform comprising the Services are provided to Company under the terms of that certain Value Added Reseller Agreement, dated as of July 22, 2009, as amended, by and between Company and Salesforce.com, Inc. (“SFDC”). By agreeing to this Agreement and as a condition to accessing and using the Services and Documentation, Customer further agrees to comply with the terms and conditions contained in the SFDC service terms of use, a copy of which is attached hereto as Exhibit A, as such agreement may be updated from time to time (the “SFDC Sales Agreement”). SFDC is an intended third-party beneficiary of the terms of the SFDC Sales Agreement. Notwithstanding anything contained herein to the contrary, Customer acknowledges and agrees that Customer is contracting solely with Company for the Services and Documentation and is not entering into a contractual relationship with SFDC by means of entering into this Agreement.

2.2. Accounts; Security. Access to or use of certain portions and features of the Service may require Customer to create an account (“Account”). Customer represents that all information provided by it is current, accurate, complete, and not misleading. Customer further warrants that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its Account(s), including the password(s). Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its Account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the Account(s). A user license is required for each person utilizing Customer’s master account, or other data generated through the use of the Service. Any sharing of such data to reduce the number of licenses required or sharing account information in any way is strictly prohibited. The number of Authorized Users set forth in any applicable Order Form may only be decreased by Customer at the beginning of any applicable Renewal Term (as defined below) and only if Customer provides Company with not less than 45 days’ prior written notice of such decrease. Customer acknowledges and agrees that it shall ensure the each Authorized User complies with the terms and conditions of this Agreement.

2.3. Restrictions on Use. In accessing or using the Service, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Service; (c) apply systems to extract or modify information in the Service using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Service any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Service that is regulated by the HIPAA Privacy Rules or the PCI Data Standards (f) input or transmit through or to the Service any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Service or grant unauthorized access thereto; (g) use or access the Service for purposes of monitoring the availability, performance or functionality of the Service or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Service to compete with Company in any way; (j) permit any third party to use or access the Service other than Authorized Users; (k) defeat, disable or circumvent any protection mechanism related to the Service or the Documentation; (l) use the Services or the Documentation to operate a service bureau or to perform service department management services for any third party, or (m) export, access or use the Services in violation of any U.S. Department of Commerce export administration regulations or other applicable laws or regulations.

2.4. Maintenance & Customization. Customer agrees that Company may install software updates, error corrections, and software upgrades to the Service as Company deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Service for purposes of this Agreement. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Company has no obligation to customize or otherwise modify the Services for Customer’s intended use.

2.5. Support. Customer may contact Company during Company’s normal business hours (Monday through Friday 9:00 a.m. – 5:00 p.m. EST (excluding national holidays or other days banks are closed in Columbus, Ohio) to notify Company that the Services are not functioning as intended or in accordance with the Documentation. Customer requests for support outside of the business hours set forth hereinabove will be provided by Company subject to availability and Company’s then applicable hourly rates.

2.6. Applicable Laws. Customer’s access to and use of the Service is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Service or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Service is compliant with applicable laws is the responsibility of Customer.

2.7. Suspension of Service. Company has the right to immediately suspend the Service (a) in order to prevent damage to or degradation of the Service or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Customer prior notice if reasonable and will ensure that the Service is restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.

3. Data Licenses.
3.1. Customer Content. As between Company and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Service that is owned by Customer (“Customer Content”) are owned by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, Company may store and maintain Customer Content for a period of time consistent with Company’s standard business processes for the Service. Following expiration or termination of the Agreement or a Customer account, if applicable, Company may deactivate the applicable Customer account(s) and delete any data therein. Customer grants Company the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement and the applicable Order Form. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Company to perform the Services.

3.2. Aggregated Data. Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may (a) capture data regarding the use of the Service by Customer, (b) collect metrics and data included in the Customer Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the Customer Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.

3.3. Records. Customer shall keep reasonably complete and accurate books and records of its activities hereunder to enable Company to audit its compliance with the terms of this Agreement. From time to time, Customer shall permit Company, or its agents, to audit and analyze Customer’s relevant records to ensure compliance with all the terms of this Agreement. Any such audit or investigation shall be permitted within five days of Customer’s receipt of Company’s written request therefor, during normal business hours, at a time mutually agreed upon by the parties. If any such audit or investigation finds an underpayment to Company of the Fees due hereunder, the amount of such underpayment shall be paid to Company within 30 days of the completion of such audit or investigation. The cost of such audit shall be borne by the Company unless such audit or investigation finds that Customer has underpaid the Fees by 5% or more for the period so audited, in which case, Customer shall reimburse Company for the cost of such audit within 30 days following Company’s written request therefor.

4. Third Party Services.
Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Customer is prohibited from linking to the Service, framing of all or any portion of the Service, and extracting data from the Service. Company reserves the right to disable any unauthorized links or frames. Company will not be responsible and expressly disclaims any liability for any third party services that Customer may use or connect to through the Service. If Customer activates any APIs or links to enable data sharing through the Service or directs Company to do so on its behalf, Customer thereby authorizes Company to send and receive Customer Content with any such activated third-party service and represents and warrants\ to Company that Customer has all appropriate right and title to grant such authorization. Customer will be solely responsible for any third-party fees related to the third-party services and compliance with any applicable third-party service terms.
This website and the Services offered by Company may, in whole or in part, contain content and features generated by an artificial intelligence language model, which model is provided by a third party (the “AI Content”). Company makes no representations about the suitability, reliability, accuracy, or completeness of the AI Content and disclaims, to the greatest extent permissible under applicable law, any and all liability for any errors or omissions in the AI Content. Customer is solely responsible for its interactions with and reliance on the AI Content.

5. Intellectual Property.
5.1. Proprietary Rights. Company’s intellectual property, including without limitation the Service, its trademarks and copyrights and excluding any Customer Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.

5.2. Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Service are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.

6. Payment and Taxes.
6.1. Fees. Fees are set forth in the applicable Order Form (“Fees”).

6.1.1. One-Time Fees. One-time Fees, including, without limitation, set-up fees, if any, are due on or before the Effective Date and are non-refundable.

6.1.2. Recurring Fees. Subscription fees, transaction fees, and all other recurring fees, if any, as set forth herein and in any applicable Order Form, will be effective as of the earlier of (a) the date on which Company provides Customer with Customer’s Account login credentials (email shall suffice), or (b) 60 days following the Effective Date (the “Commencement Date”). All such Recurring Fees are due and payable in advance according to the terms identified in the Order Form. Customer shall provide any data for import in Company’s preferred format(s) within 10 days of the Effective Date. Customer acknowledges that Customer’s failure to timely provide any requested data shall not extend the Commencement Date.

6.2. Payment. All Fees owed by Customer to Company will be automatically debited from the bank account, credit card, or other electronic payment method for which Customer has provided applicable account information (“Electronic Payment Information”). In the event Customer provides its Electronic Payment Information to Company, Customer authorizes Company to charge the credit card information provided, or debit the bank account information provided, as applicable, beginning as of the Effective Date and monthly thereafter (or as may be set forth otherwise in any Order Form), for all applicable Fees. Customer understands that this authorization will remain in effect until it is canceled in writing and agrees to notify Company in writing of any changes in Customer’s account information or termination of this authorization at least 15 days prior to the next billing date. If the payment date falls on a weekend or holiday, Customer understands that payments may be executed on the next business day. For ACH debits to a checking/savings account, Customer understands that because these are electronic transactions, these funds may be withdrawn from Customer’s account as of the payment date, and that it will have limited time to report and dispute errors. In the case the ACH transaction is returned for Non-Sufficient Funds (“NSF”) Customer understands that Company may, at its discretion, attempt to process the charge again within 30 days and agrees to an additional charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized payment. Customer has certified that the business bank account information provided is enabled for ACH transactions and agrees to reimburse Company for all penalties and fees incurred as a result of Customer’s bank rejecting ACH debits or credits as a result of the account not being properly configured for ACH transactions. Both parties agree to be bound by NACHA Operating Rules as they pertain to these transactions. Customer acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Customer agrees not to dispute these scheduled transactions with its bank or credit card company provided the transactions correspond to the terms indicated in this Agreement. In the event Customer does not provide its Electronic Payment Information, Company will send invoices to the contact(s) provided in an Order Form for each such Customer, and, unless otherwise set forth in the applicable Order Form, the Fees for each such Customer shall be due and payable within 30 days of receipt of the invoice therefor. Undisputed amounts that are past due will be subject to a monthly charge of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Company, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time, which right will include, without limitation, the right to charge a Fee for new features or functions of the Service or for features or functions that have previously been offered at no charge. Unless otherwise noted in the Order Form, all Fees are payable in United States Dollars, and non-refundable. Customer acknowledges and agrees that any invoices sent by Company pursuant to this Section may be sent to Customer via email.

6.3. Training Sessions. Company may offer, and Customer may purchase (subject to availability), as a supplement to Customer’s purchase of the Services, hourly blocks of one-on-one or group training sessions from Company, which sessions are designed to educate and familiarize Customer with Company’s Services (each, a “Training Session”). Customer acknowledges and agrees that (i) any unused Training Session, or portion thereof, shall expire and be of no further effect or value as of the date that is six months after the date on which Customer purchased such Training Session(s), and (ii) any fees paid by Customer for Training Sessions which expired as set forth herein shall be non-refundable to Customer. Notwithstanding anything herein to the contrary, Company shall have the right to adjust the pricing and details of the Training Sessions at any time, without notice to Customer; provided, however, anu such changes shall not affect Training Sessions purchased prior thereto, unless mutually agreed upon by the parties.

6.4. Taxes. Company Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer and Customer will pay such taxes unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. Term and Termination.
7.1. Term. This Agreement will be effective as of the stated date in an initial Order Form (“Effective Date”) and remain in effect until (a) all executed Order Forms have expired or been terminated or (b) terminated by either party as permitted by this Agreement. Unless otherwise stated in the Order Form the initial term (the “Initial Term”) will be for one year from the Commencement Date. Thereafter, the Order Form will automatically renew for successive periods equal to the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Term”), unless cancelled by either party in accordance with this Agreement.

7.2. Termination. Either party may terminate this Agreement by providing 60 days’ written notice prior to the end of the then current term. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property. Notwithstanding anything to the contrary, Company may terminate this Agreement immediately upon written notice if Customer (i) ceases operation of its business, (ii) breaches any of the terms or conditions of the SFDC Service Agreement, or (iii) breaches any of its obligations under Sections 2.2(b), 2.2(k), 2.2(m), or 8.

7.3. Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Service and will return all copies of the Documentation (or certify in writing that they have been destroyed), (b) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.

7.4. Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.

8. Confidential Information.
8.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Service, Documentation, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.

8.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.

8.3. Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.

9. Disclaimers.
COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICE THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.

10. Limitation of Liability.
IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.

11. Indemnification.
Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Customer Content, Customer’s use of the Service, or Customer’s breach of the SFDC Service Agreement.

12. Publicity.
Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.

13. Assignment.
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.

14. Notices.
Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to: [email protected]. Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Service.
15. Attorney’s Fees.
In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.

16. Relationship of the Parties.
This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.

17. No Third Party Beneficiaries.
This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

18. Equitable Remedies.
Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.

19. Force Majeure.
Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.

20. Limitation of Claims.
No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.

21. Solicitation.
During the Term of this Agreement and for a period of one year thereafter, Customer shall not, either directly or indirectly, for the benefit of itself or any other person or entity, (i) induce or influence, or attempt to induce or influence, any Company employee to terminate his or her employment or engagement with Company (or not to become associated with or not to do business with Company), (ii) in any way interfere with the relationship between Company and any of its employees, or (iii) employ, or otherwise engage as an employee, independent contractor or otherwise, any employee of Company who was employed by Company within the 18-month period immediately preceding the termination or expiration of this Agreement.

22. FCPA Compliance.
Customer will comply with the United Stated Foreign Corrupt Practices Act (as amended) and any analogous law or regulations existing in any other country or region, in connection with its performance under this Agreement. Customer shall not make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement, to government or political party officials, candidates for government or political office, or representatives of other businesses or persons acting on behalf of the foregoing, that would violate any applicable law, rule or regulation.

23. Export Compliance.
Customer must comply with United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Service including technical data and any Service deliverables provided under this Agreement and Customer agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer is responsible for ensuring that no data, information, software programs and/or materials resulting from the Service (or direct product thereof) will be exported directly or indirectly in violation of these laws. Customer will indemnify Company for any violation by Customer of any applicable export controls or economic sanctions laws and regulations.

24. Governing Law, Jurisdiction and Venue.
This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Colorado, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Colorado. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.

25. Severability, Waiver and Amendment.
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.

26. Counterparts, Entire Agreement and Order of Precedence.
This Agreement or any Order Form may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Form(s) states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Form; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.

EXHIBIT A
SALESFORCE.COM (SFDC)
SERVICE TERMS OF USE

“AppExchange” means the online directory of on-demand applications that work with the Service, located at http://www.appexchange.com or at any successor websites.
“Reseller” means improveit! 360 LLC.

“Reseller Application” means improveit! 360 CRM.

“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.

“SFDC Service” means the online, Web-based application and platform service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding AppExchange applications.

“SFDC” means salesforce.com.

“Users” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service subject to the terms of these SFDC Service Terms of Use as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by Salesforce.com or Reseller at Your request).

“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of these SFDC Service Terms of Use, together with any other terms required by Reseller.

“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Service.

1. Use of Service.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Service via the Reseller Application, subject to the terms of these SFDC Service Terms of Use, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Service). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service. If You wish to use the SFDC Service or any of its functionalities or services, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any SFDC Service functionality within it that is in excess to the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access and use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.

(b) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.

(c) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or Salesforce.com promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform and the SFDC Service.

(d) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by these SFDC Service Terms of Use; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.

(e) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.

2. Third-Party Providers. Reseller and other third-party providers, some of which may be listed on pages within SFDC’s website and including providers of AppExchange applications, offer products and services related to the Platform, the SFDC Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers’ use of the Platform and/or the SFDC Service, and applications (both offline and online) that interoperate with the Platform, SFDC Service, and/or the Reseller Application, such as by exchanging data with the Platform, the SFDC Service, and/or the Reseller Application, or by offering additional functionality within the user interface of the Platform, the SFDC Service, and/or the Reseller Application through use of the Platform and/or SFDC Service’s application programming interface. SFDC does not warrant any such third-party providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by SFDC as “certified,” “validated” or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or SFDC Service) may be offered by SFDC or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of these SFDC Service Terms of Use.

3. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in these SFDC Service Terms of Use. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in these SFDC Service Terms of Use.

4. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.

5. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.

6. Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of these SFDC Service Terms of Use by You or any User, (b) the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with these SFDC Service Terms of Use.

7. Subscriptions Non-Cancellable. Subscriptions for the Platform and the SFDC Service are non-cancellable during a subscription term, unless otherwise specified in Your agreement with Reseller.

8. Data Storage. The Platform and SFDC Service includes a certain cumulative amount of storage per User subscription for no additional charge. Contact Your Reseller for additional information. Additional storage may be available for purchase from the Reseller.

9. No Warranty. SALESFORCE.COM MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SALESFORCE.COM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO RESELLER APPLICATION AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

10. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Further Contact. SFDC may contact You regarding new SFDC service features and offerings.

12. Google Programs and Services. Platform or SFDC Service features that interoperate with Google programs and services depend on the continuing availability of applicable Google application programming interfaces (“APIs”) and programs for use with the Platform and the SFDC Service. If Google Inc. ceases to make such APIs and/or programs available on reasonable terms to SFDC, SFDC may cease providing such features without entitling You or Reseller to any refund, credit, or other compensation.
13. Third Party Beneficiary. SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to these SFDC Service Terms of Use.