This SAAS Subscription Agreement (the “Agreement”) is made between LeadsPedia, Inc. (“LeadsPedia”), a Delaware corporation having its principal place of business at 6840 Carothers Pkwy Ste 210, Franklin, TN 37067, and the party ("Customer") subscribing to the LeadsPedia service through the online ordering process for use of the services (as amended from time to time in accordance with this Agreement, "Order"). This Agreement is effective upon its acceptance by Customer in the course of the Order (the "Effective Date"). The information entered by or on behalf of Customer during the Order is incorporated herein and made part of this Agreement.
By submitting the requested information and clicking the button on the LeadsPedia online ordering web page Customer accepts this Agreement, and Customer represents that it has the full legal authority to enter into this agreement. BY (AS APPLICABLE) SIGNING AN ORDER FORM, CLICKING "ACCEPT" AND/OR ACCESSING OR USING ANY SERVICES OF LEADSPEDIA, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS AGREEMENT. LeadsPedia may change the terms of the Agreement upon notice published over the Service or posted online. Customer may review the Agreement applicable to the then current use by clicking the "Subscription Agreement" button on the home page. Customer should click "Subscription Agreement" each time the Service is accessed to review a copy of the then current Agreement. By using the Service after any change to the Agreement is posted on the Service Customer will be deemed to be bound by all such changes.
(a) Customer Data. “Customer Data” means any of Customer’s information, documents, or electronic files that are provided to LeadsPedia hereunder.
(b) Documentation. “Documentation” means any online or printed user manuals or functional specifications that describe the functionality of the Software and that are provided to Customer by LeadsPedia, and any updates of the foregoing.
(c) Error. “Error” means any reproducible material failure of the Software to function in accordance with its Documentation.
(d) Software. “Software” means the LeadsPedia's proprietary lead generation, affiliate management and tracking, and call tracking software applications used to provide the Services hereunder, including any Updates relating thereto that may be provided hereunder or thereunder, and any derivative works of the foregoing.
(e) Services. "Services" means the lead generation, affiliate management and tracking, call tracking services, and any other service provided by LeadsPedia hereunder, including the hosting, management and operation of the Software for remote electronic access and use by the Customer and its Users.
(f) Support. “Support” means the support services described in Section 3 below.
(g) Update. “Update” means any patch, bug fix, release, version, modification or successor to the Software.
(h) User. “User” means a named individual to whom Customer has granted access to use the Services on Customer’s behalf, regardless of whether or not the User actually uses the Services.2. Service
(a) Service. During the term and subject to the terms of this Agreement, LeadsPedia shall provide to Customer the Services set forth on Appendix A. Customer and LeadsPedia may add, remove, or modify the Services by entering into a mutually-agreed written service change form.
(b) Additional Services. To the extent LeadsPedia agrees to provide Services not specified herein or pursuant to a separate written service change form, Customer shall pay LeadsPedia its then current fees, plus expenses, for such Services. For clarification, LeadsPedia does not have an obligation to provide any Service or make any change to the scope of Services except as agreed in writing by LeadsPedia.
(c) License Grant. During the term and subject to the terms of this Agreement, LeadsPedia hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Software in object code form for its internal business purposes. All rights in and to the Software not expressly granted herein are reserved to LeadsPedia.
(d) License and Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party, (i) copy, disassemble, reverse engineer, or decompile the Software; (ii) modify, create derivative works based upon, or translate the Software; (iii) transfer or otherwise grant any rights in the Software or Services in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
(e) Customer Data. Customer owns all right, title and interest in the Customer Data. Customer hereby grants to LeadsPedia, a non- exclusive, non-transferable, non-sublicensable right and license to use, copy, transmit, modify and display the Customer Data solely for purposes of providing the Services to Customer. LeadsPedia shall not use the Customer Data except as necessary to perform its obligations hereunder.
(f) Security. Customer is solely responsible for maintaining the security of all user names and passwords granted to it, for the security of its information systems used to access the Services, and for its Users’ compliance with the terms of this Agreement. LeadsPedia has the right at any time to terminate or suspend access to any User or Customer if LeadsPedia reasonably believes that such termination or suspension is necessary to preserve the security, integrity, or accessibility of any portion of the Services, LeadsPedia, or LeadsPedia's other customers.3. Support and Training.
(a) Updates. LeadsPedia shall deliver to Customer any Updates at no charge unless the Update includes new optional components or functionality for which additional charges apply.
(b) Error Correction. LeadsPedia shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during LeadsPedia's normal business hours. Customer shall provide such access, information, and support as LeadsPedia may reasonably require in the process of resolving any Error.
(c) Support Exclusions. LeadsPedia is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:
- (i) the acts, omissions, negligence or willful misconduct of Customer, including any unauthorized modifications
- of the Software or its operating environment; (ii) any failure or defect of Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of LeadsPedia's firewall);
- (iii) Customer’s use of the Software other than in accordance with the Software’s documentation; or
- (iv) a Force Majeure Event.
(d) Support Fees. LeadsPedia has the right to bill Customer at its standard services rates for any support issues excluded by Section 3(c) above.
(e) Limitation of Remedies. Correction of Errors as defined in this Agreement is Customer’s sole remedies for any Errors in the Software.4. Financial Terms
(a) Subscription Fee. Customer shall pay to LeadsPedia the set up fees, monthly subscription fees, and other fees identified in Customer's Order, as set forth on Appendix A.
(b) Expenses. Customer shall pay LeadsPedia for its reasonable and necessary expenses (including travel, travel-related expenses and time) that are outside of normal operations.
(c) Payment Terms. LeadsPedia shall invoice Customer monthly in advance for all recurring charges, which invoices will also include all non-recurring charges and expenses incurred since the previous invoice. Customer shall pay all LeadsPedia invoices within 10 business days of the invoice date with the exception of the setup fee which is due before application access is granted. If Customer is delinquent in payment of any portion of an invoice that it has not disputed in good faith, LeadsPedia may, in addition to other remedies it may have, including termination, suspend access to the Software and/or provision of all Services to Customer. Customer agrees to pay late fees on delinquent amounts at the rate of 1½% per month (or, if lower, the maximum amount permitted by law) that a payment is overdue. If LeadsPedia takes any legal action for the collection of any undisputed overdue payments, Customer shall also reimburse LeadsPedia for its reasonable attorneys’ fees and other costs incurred in that action, in addition to any other relief to which LeadsPedia may be entitled.
(d) Taxes. Customer shall pay or shall reimburse LeadsPedia for all sales taxes and other taxes, however characterized by the taxing authority, based upon the license fees or other charges under this Agreement or otherwise incurred on account of Customer’s use of the Services, except for any taxes based upon LeadsPedia's net income or gross receipts or for any franchise or excise taxes owed by LeadsPedia. If Customer is a tax-exempt organization, then, upon LeadsPedia's receipt of proof of such status, then LeadsPedia shall not charge Customer for any taxes from which Customer is exempt.5. Term and Termination
(a) Term. The term of this Agreement commences on the Effective Date unless either party gives the other party written notice of its intention not to renew at least 30 days in advance of the then current term.
(b) Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
- (i) if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed;
- (ii) in the case of LeadsPedia, immediately upon any breach by Customer of Section 2(d) above;
- (iii) immediately upon any breach of any confidentiality obligations owed to such party by the other party;
- (iv) if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non- breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
- (v) upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
(c) Obligations Upon Termination. Upon termination of this Agreement: (i) LeadsPedia shall immediately discontinue providing the Services and terminate access to the Software by Customer and its Users; and (ii) Customer shall immediately pay LeadsPedia any amounts payable or accrued but not yet payable to LeadsPedia, including any deferred payments or payments originally to be made over time.6. Confidentiality
(a) Definition of Confidential Information. “Confidential Information” means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that: (A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or (B) the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation: (i) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that Company is obligated to keep confidential; (iii) the material terms and conditions of this Agreement; and (iv) any nonpublic information relating to any activities conducted hereunder.
(b) Exclusions. Notwithstanding the above, the term “Confidential Information” does not include any information that is either: (i) readily discernible from publicly-available products or literature; or (ii) approved for disclosure by prior written permission of an executive officer of the disclosing party.
(c) Use of Confidential Information. Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and it shall not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization.
(d) Required Disclosures. A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
(e) Return of Information. If a disclosing party so requests at any time, the receiving party shall return promptly all copies, extracts, or other reproductions in whole or in part of the Confidential Information in its possession.
(f) Survival. The parties hereto covenant and agree that this Section 6 will survive the expiration, termination, or cancellation of this Agreement for a period of 3 years, except for Confidential Information constituting a trade secret, with respect to which this Section will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.7. Indemnification
(a) Indemnification. Each party shall indemnify the other, the other’s affiliates, and all of their stockholders, officers, directors, agents, and employees (each, an “Indemnified Party”) at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party (i) alleging that the use in accordance with this Agreement of the Software (in the case of LeadsPedia) or the Customer Data (in the case of Customer) infringes or misappropriates any intellectual property or privacy rights of the unaffiliated third party, or (ii) that arises or is alleged to have arisen solely out of the gross negligence or intentional misconduct of the indemnifying party (each a “Third Party Claim”). Notwithstanding the foregoing, if the Software becomes the subject of such a claim of infringement then LeadsPedia may, at its option: (x) procure for Customer the right to use the Software free of any liability for infringement; (y) replace or modify the Software to make it non- infringing but with reasonably comparable functionality; or (z) if LeadsPedia determines that the previous two options are not available on a commercially reasonable basis, grant to Customer a credit for the unused portion of any prepaid fees and refund any deposits paid by Customer for the affected Software. Furthermore, LeadsPedia has no liability for, and no obligation to indemnify Customer against, any Third Party Claim arising or alleging based in whole or in part on use of the Software other than as specified in this Agreement, or its Documentation, including use with third party hardware and software products not specifically authorized by LeadsPedia.
(b) Indemnification Process. The Indemnified Party shall promptly notify the indemnifying party in writing of any Third Party Claim, stating the nature and basis of the Third Party Claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any Third Party Claim, provided that, within fifteen (15) days after receipt of the above-described notice, the indemnifying party notifies the Indemnified Party of its election to so assume full control. The foregoing notwithstanding, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such claim, except that the Indemnified Party’s legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (x) the indemnifying party fails or refuses to assume control over the defense of the Third Party Claim within the time period set forth above; (y) the Indemnified Party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (z) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The indemnifying party shall not settle any such Third Party Claim without the written consent of the Indemnified Party, except for a complete settlement requiring only the payment of money damages to be paid by the indemnifying party.8. Disclaimers and Limitations
(a) Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LEADSPEDIA, AND ITS DATA PROVIDERS, MAKE NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SOFTWARE OR SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, LEADSPEDIA, AND ITS DATA PROVIDERS, DISCLAIM ANY WARRANTY THAT THE SOFTWARE, THE SERVICES PROVIDED BY LEADSPEDIA, OR THE OPERATION OF THE SOFTWARE ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. LEADSPEDIA, AND ITS DATA PROVIDERS, MAKE NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) Disclaimer of Consequential Damages. LEADSPEDIA, AND ITS DATA PROVIDERS, HAVE NO LIABILITY WITH RESPECT TO THE SOFTWARE, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, DIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF LEADSPEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) Limitations of Remedies and Liability. LEADSPEDIA, AND ITS DATA PROVIDER'S, TOTAL LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL MONTHLY RECURRING FEES PAID TO LEADSPEDIA BY THE CUSTOMER DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.
(d) Disclaimer of Third Party Data. The Services provided by LeadsPedia to Customer may include certain data or other content supplied to LeadsPedia by one or more third party data or content providers ("Third Party Data Providers"). All data and content from Third Party Data Providers is provided to Customer “as is” basis without warranties of any kind. Customer acknowledges that data and content from Third Party Data Providers may or may not be completely thorough or accurate and Customer shall not rely on such data and content for the accuracy and completeness of information made available via the Services. Third Party Data Providers are not liable to Customer in any manner in connection with their use of data or content supplied by them. Customer shall indemnify, defend, and hold harmless the Third Party Data Providers from and against all claims, actions, and judgments arising out of Customer's use of the data and content provided hereunder.9. General
(a) Promotional Materials. Either party may include statements, and may use the other party's name and logos, in its website, commercial advertisements and promotional materials for the sole purpose of indicating that Customer is a user of the Services.
(b) Force Majeure. “Force Majeure Event” means any act or event that (a) prevents a party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other party’s (the “Performing Party”) obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party’s performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party’s obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
(c) Assignment. Customer shall not assign any of its rights under this Agreement, except with the prior written consent of LeadsPedia. The preceding sentence applies to all assignments of rights, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
(d) Governing Law; Venue. The laws of the State of Tennessee (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Nashville, Tennessee, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Nashville, Tennessee; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
(e) Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which the successful party may be entitled. This paragraph does not apply to an action by LeadsPedia to collect undisputed overdue payments pursuant to Section 4(c) above.
(f) Entire Agreement. This constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this Agreement, other than any that are expressly stated in this Agreement.
(g) Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
(h) Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in Sections 2(d), 8, and 9 in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.