1. SERVICES AND SUPPORT
Subject to the terms hereof, LeadSift will use commercially reasonable efforts to provide Customer with the services and related support (“Services”) as set out in one or more ordering documents (the “Order Forms”.
2. RESTRICTIONS AND RESPONSIBILITIES
Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth in the applicable Order Form) LeadSift grants Customer the non-exclusive, non-transferable, non-sublicensable right to use the Services specified in such Order Form during the applicable Service Term (as defined below) for the internal business purposes of Customer, only as provided in this Agreement or such Order Form and only in accordance with Leadsift’s applicable official user documentation for such Services (the “Documentation”). As between the parties, LeadSift retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by LeadSift for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software, Documentation, instructions or other ancillary materials which are distributed or otherwise provided to Customer under this Agreement (including without limitation any software identified on an Order Form) shall be deemed a part of the Services and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Company shall own and retain all right, title and interest in and to (a) the Services and all improvements, enhancements or modifications thereto, all intellectual property rights related to any of the foregoing Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services, modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company or authorized within the Services); use the Services for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
The Services may be integrated with, interoperate with, provide Customer with access to, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by third parties (collectively, “Third Party Products”). gateway products or services, as well as related data. Third Party Products are not not under LeadSift’s control, and Customer acknowledges that LeadSift is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of Third Party Products. To the extent that Customer directs LeadSift to integrate the Servcies with any Third Party Products, (i) Customer consents to LeadSift performing such integration, and (ii) Customer represents and warrants that such integration will not cause any conflict with or infringement of any third party rights (including without limitation any terms and conditions applicable to such Third Party Products.
Customer represents and warrants that Customer will use the Services only in compliance with LeadSift’s standard published policies then in effect (the “Policy”) Customer represents and warrants that Customer will use all Services in compliance with all applicable local, state, national, and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), including but not limited to complying with any notification and opt-out requirements, and (b) shall not use any Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). LeadSift’s Confidential Information includes non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services.The Receiving Party agrees: (i) to protect such Confidential Information, using at least the same degree of care as it employs in maintaining the security of its own proprietary or confidential information, but in no event less than a reasonable degree of care. and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after two (2) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law The confidentiality obligations with respect to any Confidential Information subject to trade secret protection will continue indefinitely.
Notwithstanding anything to the contrary, Company shall have the right to collect and analyze non-personal and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
Customer may (but is not obligated to) provide suggestions, comments or other feedback to LeadSift with respect to the Services (“Feedback”). Feedback shall not create any confidentiality obligation for LeadSift notwithstanding anything else. Customer shall, and hereby does, grant to LeadSift a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
4. PAYMENT OF FEES
Customer will pay LeadSift the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). All Fees paid are non-refundable and are not subject to set-off. If Customer’s use of the Services exceeds the limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage as mutually agreed by the parties and Customer agrees to pay the additional fees in the manner provided herein. Except as other wise agreed to on the Order Form, LeadSift reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 15 days after the date of the first invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Except as otherwise stated in the Order Form. Company shall invoice Customer, and full payment for invoices issued in any given month must be received by Company thirty (30) days from Customer’s receipt of the invoice. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.
5. TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”).
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by LeadSift or by third-party providers, or because of other causes beyond LeadSift’s reasonable control, but LeadSift shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, LEADSIFT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND LEADSIFT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ]
LeadSift shall defend at its own expense any claim, proceeding or suit (a “Claim”) brought against Customer to the extent such Claim alleges that any of the Services furnished hereunder infringes any Canadian or US copyright, patent or registered trademark of a third person and will indemnify and pay all damages which by final judgment or settlement may be assessed against Customer on account of such infringement, provided that: (i) LeadSift is given prompt written notice of the Claim or any allegations or circumstances know to Customer which could result in a Claim; (ii) LeadSift is given all reasonable information and assistance from Customer, at LeadSift’s expense, which LeadSift may require to defend the Claim; (iii) LeadSift is given sole control of the defence of the Claim, and all negotiations for the settlement or compromise thereof; and (iv) the alleged infringement does not result from any non-permitted uses, alterations, modifications or enhancements carried out by Customer or on its behalf by a third person. If such Claim has occurred, or in LeadSift’s opinion is likely to occur, LeadSift may, at its option and expense, either procure for Customer the right to continue using the Service,d or modify the same so that it becomes non-infringing without loss of functionality, or if none of the foregoing alternatives is reasonably available and at LeadSift’s discretion, discontinue the Service and use of the Services and refund to Customer any pre-paid and unused portion of the Fees paid by Customer in respect of use of the Services. The foregoing states the entire obligations of LeadSift with respect to any infringement of intellectual property rights of any third Person.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, OR GROSS NEGLIGENCE, NEITHER PARTY NOR THEIR OFFICERS, AFFILIATES, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, STRICT LIABILITY OR OTHER THEORY (AS APPLICABLE) FOR: (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Customer may not assign, transfer or sub-license this Agreement, in whole or in part, without LeadSift’s written consent, which consent will not be unreasonably withheld. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, including any non-disclosure agreements, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provision.
Last Updated: September 28, 2021