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NetCharts®, salesforce.com Edition Master Subscription Agreement

BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF VISUAL MINING, INC.’S HOSTED SERVICE, NetCharts Performance Dashboards, salesforce.com Edition (THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THUS THE TERMS "YOU", "YOUR" AND “LICENSEE” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE. THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE EARLIER OF THE DATE THIS AGREEMENT IS ACCEPTED BY CHOSING THE “I ACCEPT” OPTION PRESENTED ON THE SCREEN AFTER THIS AGREEMENT IS DISPLAYED, OR THE DATE SET FORTH IN THE ORDER FORM (THE “Effective Date”).
Your registration for, or use of, the Service shall be deemed to be your agreement to abide by the terms and conditions of this Agreement, including any materials available on the Visual Mining’s website, incorporated by reference herein, including but not limited to Visual Mining’s privacy and security policies.

1. DEFINITIONS.
In addition to other terms defined elsewhere in this Agreement, the following terms are defined for purposes of this Agreement as follows:

1.1 "Agreement" shall means these online terms and conditions, any Order Forms and any materials available on Visual Mining’s website specifically incorporated by reference herein, which may be updated by Visual Mining from time to time at its sole discretion.

1.2 “Confidential Information” shall mean any information provided by either Party or prepared by either Party (in oral, written, or digital form) in connection with this Agreement, including technical data, or know-how provided to either Party by the other (whether through a director, officer, employee, agent or representative) including, but not limited to, that which relates to trade secrets, research, product plans, products, services, markets, software, programming code, algorithms, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing pricing terms or finances of the disclosing Party. Notwithstanding the above, however, Confidential Information shall not include (i) information that is publicly known or available, or becomes publicly known or available without breach of this Agreement; (ii) any information that has been publicly disclosed by either Party or is released for public disclosure by either Party with its prior written consent; (iii) any information already (i.e., prior to disclosure by the other Party) rightfully in the possession of the receiving Party without an obligation of confidence; (iv) any information that is rightfully received by the receiving Party from a non-party without an obligation of confidence; or (v) any information that is independently developed by the receiving Party without the use of Confidential Information of the disclosing Party.

1.3 “Customer Data” shall mean any data, information or material you provide or submit to the Service during the course of using the Service.

1.4 "Documentation" shall mean the documentation in electronic form, instructions and user's guides, including updates thereto, relating to the Software, provided by Visual Mining to You for the purposes of this Agreement.

1.5 "Order Form(s)" shall mean the form evidencing the subscription for the Service and any subsequent order forms specifying the number of licenses, services, the applicable fees, the billing period, and other fees as agreed to between the parties, with each such Order Form to be incorporated into and to become a part of this Agreement. Should a conflict exist between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail.

1.6 "User(s)" shall mean your employees, representatives, consultants, contractors or agents authorized to use the Service and have been supplied user identifications and passwords by you (or by Visual Mining upon your request).

2. License Grant.
Subject to payment of the Fees as set forth in the Order Form(s) and to the terms and conditions herein, Visual Mining hereby grants you a non-exclusive, non-transferable, worldwide limited right to access and use the Service, solely for your own internal business purposes. This License Grant is not a sale and does not convey to you any rights of ownership in or related to the Service, Materials, designs, know-how or any of Visual Mining’s intellectual property. This License Grant includes:
a) The right to electronically display information retrieved from the Service to no more than the aggregate number of authorized licensed users pursuant to the Order Form(s) executed with Visual Mining effective for the current term;
b) The right to obtain a printout of the information provided by use of the Service.

User licenses may not be shared or used by more than one individual User, however, licenses may be reassigned from individual to individual as reasonably necessary to accommodate new Users replacing former Users no longer using the Service.

All rights not expressly granted to you are reserved by Visual Mining and, if applicable, its licensors.

3. License Restrictions.
You are strictly prohibited from and shall not:
a. License, sublicense, rent, loan, lease, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to a third party the Service or the information retrieved from the Service in any manner;
b. reverse engineer or access the Service in order to (i) build a competing product or service, (ii) build a product using similar features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service;
c. send or store infringing or otherwise unlawful material or that which violates the privacy rights of third party;
d. send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or
e. interfere with or disrupt the integrity or performance of the Service or the data contained therein; nor shall you attempt to gain unauthorized access to the Service or its related systems or networks.

4. Proprietary Rights.
You shall acquire no rights in the Service, Materials or Documentation other than as set forth herein. All right, title and interest (including all copyrights and other intellectual property rights) in the Service, underlying technology, materials provided and Documentation (in both print and machine-readable forms), including any copyright, patent, trade secret, trademark or other intellectual property rights, will at all times remain the property of Visual Mining and, if applicable, Visual Mining’s Licensor(s). All use of such proprietary assets shall inure to Visual Mining’s benefit. You agree not to remove or obliterate any copyright, trademark or proprietary rights notices of Visual Mining or Visual Mining Licensors from the Service or the reports created utilizing the Service. The Visual Mining name, logo, and product names associated with the Service are trademarks of Visual Mining, and no right or license is granted to you for their use.

5. Confidentiality.
Each Party agrees that it will hold in strict confidence and not disclose the Confidential Information of the other Party to any third party and to use the Confidential Information of the other Party for no purpose other than the purposes expressly permitted by this Agreement. Each Party shall maintain the confidentiality and prevent accidental and other loss or disclosure of any Confidential Information of the other Party with at least the same degree of care as it uses to protect its own Confidential Information but in no event with less than reasonable care. Upon written request by either Party, the other Party shall promptly return all documents and other tangible materials representing the requesting Party’s Confidential Information and all copies thereof.

6. Privacy & Security Disclosure.
Visual Mining’s privacy and security policies are available at http://www.visualmining.com/company/privacy-statement.shtml. Visual Mining reserves the right to modify its privacy and security policies in its reasonable discretion from time to time, and without notice. The Service is a hosted, online application, therefore, Visual Mining reserves the right to notify all users of the Service of important announcements regarding the operation of the Service. Provided you are a customer of the Service, Visual Mining may communicate the general existence of this Agreement to other parties provided that no specific terms and conditions in this Agreement are disclosed.

7. Continued Responsibilities.
You are responsible for all activity occurring under your User ID and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Visual Mining immediately of any unauthorized use of any User ID or any other known or suspected breach of security; (ii) use your best efforts to prevent any copying or distribution or other unauthorized use of the Service by you or your Users; and (iii) not impersonate another Service user or provide false information to gain access to or use the Service.

8. Accuracy of Data.
Visual Mining does not own any data utilized to created the reports as part of the Service; the Service utilizes your data, therefore you, not Visual Mining, has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use such data. Visual Mining expressly disclaims and shall not be responsible or liable for the deletion, accuracy, correction, destruction, damage, loss or failure to store any of your Data. Upon termination for cause, your right to access or use the service immediately ceases.

9. Term.
This Agreement shall remain in effect for a period of one (1) year from the Effective Date (the “Initial Term”), unless terminated earlier in accordance with Section 12. This Agreement will automatically renew and be extended for an additional 12 month term (such twelve month period an “Extension Term”), subject to the fees available at the time of renewal, provided that in no event shall such fees for the same number of subscription licenses and level of service be increased in any year by more than fifteen percent (15%) over the previous year’s undiscounted fees.

10. Fees and Payment Terms.
Fees for the Service and any applicable training or professional services offered by Visual Mining are set forth in an applicable Order Form. You will be responsible for payment of all fees or charges to your account in accordance with the fees and billing terms in effect at the time an Order Form is executed. Initial license fees will be based upon the number of total User licenses you require. Payments will be within forty-five (45) days of the Effective Date, due in full for the aggregate annual fees and one time fees, or otherwise consistent with the terms set forth in the Order Form; if not specified, payments shall be annually. You are responsible for paying for all User licenses ordered for the entire Term, even if you do not fully use the maximum number ordered. A valid credit card or approved purchase order is required as a condition of signing up for the Service, and you shall be required to pay in advance for use of the Service. An authorized officer or representative (“Authorized Representative”) of yours may add licenses by executing an additional written Order Form. If purchasing via an approved purchase order, all amounts owed to Visual Mining shall be paid within forty-five (45) days from the Effective Date. You agree to pay a late payment charge of one percent (1%) per month or the maximum allowed by law, whichever is less, on all overdue amounts.

There shall be no deductions from the payments owed to Visual Mining due to lack of use of the license level ordered. The number of licenses ordered cannot be decreased prior to the expiration of the then current Term. However, licenses may be added at any time, provided that (i) the licenses will be coterminous with the existing Term (either Initial Term or Renewal Term); (ii) the license fee due for the added licenses shall be pursuant to the Order Form provided by Visual Mining and shall be pro-rated based on the time remaining within the current term; and (iii) licenses added prior to the fifteenth of any month will be charged for a full month. Visual Mining reserves the right to modify its fees and billing rates or introduce new charges at any time, however, Visual Mining shall provide thirty (30) days prior written notice of any price increase to you, with such price increase not to take effect until the expiration of the then current Term. You will pay all applicable shipping charges and taxes (except for taxes based upon Visual Mining’s net revenues or net income).

You agree to provide Visual Mining with complete and accurate billing and contact information, inclusive of your company’s legal name, street address, e-mail address, and your Authorized Representative’s contact information, which you agree to update within 30 days of any change to it. If you provide false, fraudulent, or inaccurate information, Visual Mining reserves the right to terminate the Service in addition to all other legal remedies.

11. Excess Data Storage Fees.
You are limited in the amount of disk storage space you may utilize. Unless agreed to otherwise through an executed amendment to this section, you/your application may utilize no greater than .5 MB per User license. If storage you require exceeds the limit, you will be charged an additional storage fee at the then-current rate based on your requirement. Visual Mining attempt to notify you telephonically when your aggregate storage used per license level reaches approximately 95% of the maximum for that license level, however, any failure by Visual Mining or its representative(s) to notify you will not affect your responsibility for such additional storage charges on a prospective basis. Visual Mining reserves the right to modify its general practices and limits relating to storage.

12. Termination.
12.1 Early Cancellation Period. Licensee may cancel Service within the first 30 calendar days of the commencement of the Initial Term (the “Early Cancellation Period”) without incurring any Service fees or early termination.