This Services Agreement and Terms of Service (the “Agreement”) is entered into pursuant to the order form (the “Order Form”) between you (hereinafter, “Client” or “You”) and Lead Engagements Software Company (“Lead Engagements”, “we” or “us”) (together with you, the “Parties”), and it becomes effective as of the date of your signature on the Order Form (the “Effective Date”). This Agreement relies on certain defined terms, and these terms are specified in Section 9 or are otherwise defined in context. This Agreement is incorporated into the Order Form by reference and, likewise, the terms of the Order Form are hereby incorporated herein by reference, subject to the provisions of Section 8.6, below.
1. Lead Engagements Services
We provide access to a web-based portal containing data, reports, dashboards, and analytics through a product named LEAD ENGAGEMENTS (the “Services”), as defined below and as more specifically identified in the Order Form. As part of the Services, Lead Engagements will provide consulting and implementation assistance for LEAD ENGAGEMENTS as agreed upon in one or more Statements of Work entered into hereunder.
2. Grant of Rights, Intellectual Property Ownership
To provide the Services, we use proprietary software (“Software”), know-how, and other items that together embody Lead Engagements IP. Lead Engagements and its licensors own the Software, reports, and analysis created thereunder (the “Reports”), and all associated intellectual property. You retain ownership of Client Information and intellectual property rights associated with such Client Information. Lead Engagements owns the Intellectual Property associated with all the content in the Reports, including all information, artwork, text, trademarks, trade dress, and report formatting. We grant you a non-exclusive, non-transferable, royalty-free license to access and use the Reports for your internal business purposes during the term of this Agreement.
2.1 Grant of License
Lead Engagements hereby grants to Licensee a non-exclusive, non-transferable license to use the Software and its related Documentation during the Term of this Agreement as follows:
- For internal purposes only, in the conducting of its normal business;
- To copy any software data files created by the Software or for back-up or archival purposes.
- If the software license granted herein is terminated by the Licensee or Licensor for any reason, Licensee shall have no rights in the Software.
2.2 Limitations of License
Use of the Services and Software underlying them is limited to authorized personnel of the Client, and access may not be granted to any other individual or entity without Lead Engagements’ advanced written permission. Use of the Services shall be limited to Client’s internal business uses in its ordinary course of business. Any use exceeding this limitation shall represent a material breach of this Agreement and the license provided hereunder.
2.3 Terms of Service; Privacy Policy; Acceptable Use
All users of the Software shall be required to review, accept, and abide by these Terms of Service, the Privacy Policy, User Guidelines, and Acceptable Use Policy. The text of the applicable policies may be found at the following URLs, and their terms and provisions are hereby explicitly incorporated herein by reference: Privacy Policy.
2.4 Lead Engagements Intellectual Property Rights
In the course of performing its duties under this SOW, Lead Engagements may use enhancements, discoveries, processes, methods, designs, and know-how, whether or not copyrightable or patentable, which Lead Engagements conceived during the course of this and other consulting engagements. Additionally, Lead Engagements may independently develop enhancements, processes, methods, designs, or know-how during the term of this consulting engagement. The parties understand and agree that any such developed enhancements, processes, methods, designs, know-how, or other similar matters shall not be considered works for hire and are the sole and exclusive property of Lead Engagements. Lead Engagements shall have sole ownership of all such matters, including copyrights, trademarks, and patents, subject only to the license granted hereunder.
2.5 Client Information; PII; Privacy Obligations
Client agrees that it is the data controller of personal information and/or personally identifiable information (“PII”) collected or otherwise entered into its licensed accounts for the Software and/or the Services. Client grants Lead Engagements the right and license to make use of Client Information, including but not limited to PII, for the purpose of processing said information as necessary in order to provide the Services. Lead Engagements agrees that it shall make use of PII only for the purpose of processing the PII for the purposes of providing the Services and for otherwise complying with legal and/or regulatory requirements imposed upon Lead Engagements with respect to the PII or otherwise.
2.5.1 Customer Responsibility
Customer is responsible for all Customer Sites integrated or used with the Services, including without limitation:
- Compliance with all Applicable Laws that relate to data protection and individual privacy and publicity rights.
- Posting an online privacy notice that:
- Discloses in a legally sufficient manner how data (including PII) is collected and the purposes for which data is collected and used by Customer and Lead Engagements.
- Includes instructions on how End Users can control the collection of data by web browsers and mobile devices and how End Users can opt-out from receiving interest-based advertising.
2.5.2 GDPR Compliance
Client shall be responsible for addressing any and all inquiries or requests from individuals regarding their PII pursuant to the General Data Privacy Directive of the European Union and the rules thereunder (the “GDPR”). Lead Engagements agrees to cooperate in a commercially reasonable manner with the Client with respect to instructions received in writing from the Client regarding Client’s PII disclosure and/or removal obligations under the GDPR. Where the Customer Sites attract End Users from European Territories, Customer must deploy a consent and transparency mechanism (“Consent Mechanism”) on Customer Sites to obtain End User consent to Lead Engagements placing cookies or similar tracking technologies on End Users’ browsers and/or through emails.
2.5.3 CCPA Compliance
Client shall be responsible for addressing any and all inquiries or requests from individuals regarding their PII pursuant to the California Consumer Privacy Act and the rules thereunder (the “CCPA”). Lead Engagements agrees to cooperate in a commercially reasonable manner with the Client with respect to instructions received in writing from the Client regarding Client’s PII disclosure and/or removal obligations under the CCPA. Customer must provide specific notice to California residents in the Customer’s online privacy notice that includes a link to the California Residents Section of Lead Engagements’ Service Privacy Notice here which addresses Lead Engagements’ obligations under the CCPA.
2.5.4 Other Applicable Privacy Laws
Customer shall be solely responsible for complying with and monitoring changes to existing privacy laws and regulations and/or the passage of new privacy laws and/or regulation which may apply to Customer and its responsibilities for the handling of PII for which it may be considered an owner, controller, or processor (or other such similar position of legal responsibility as such laws or regulations may impose upon Customer). Customer acknowledges and agrees that as the owner of the website(s) through or in association with which the PII processed by Lead Engagements is gathered, Customer is solely responsible for and shall have final say as to whether and to what extent such PII is processed by Lead Engagements. Customer shall assume full legal responsibility for all such decisions and/or directives to Lead Engagements and shall indemnify and hold Lead Engagements harmless for all such decisions and/or directives.
2.5.5 Lead Engagements’ Privacy Mechanisms
Notwithstanding Customer’s responsibility for posting an online privacy notice in compliance with the other provisions of this Section 2.4, Lead Engagements may, in its reasonable discretion, take steps to inject or otherwise display certain privacy notices, acknowledgements, and/or Consent Mechanisms on all Customer Sites integrated or used with the Services for the purposes of informing and/or securing consent or approval from End Users with respect to obligations under applicable privacy laws and/or regulations. Customer agrees to cooperate to the fullest extent practicable and/or required by law with Lead Engagements in complying with such privacy laws or regulations. Should Customer choose to exclusively make use of its own privacy notices, acknowledgements, and/or Consent Mechanisms, Customer shall notify Lead Engagements in advance, in writing, and acknowledge its sole responsibility for the display of all privacy notices and/or Consent Mechanisms and its obligation to indemnify and hold Lead Engagements harmless from any violations of then-applicable law arising from Customer’s election to use its own privacy policies, notices, and/or Consent Mechanisms.
3. Charges, Fees, Payments
You will pay us for the Services as identified and specified in the Order Form. Furthermore, you agree to reimburse us for travel and accommodation expenses incurred at your request.
3.1 Billing
You are responsible for payment of our invoices, and you shall pay such fees directly to us without delay or set off as provided in Section 3.2 and the Order Form.
3.2 Payment Terms
Except for the Setup/Launch Fee, which is due upon execution of this Agreement, payment is due within thirty (30) days of receipt of invoice. Upon execution of this Agreement, you shall set up an automated payment process through either 1) ACH debit service, 2) credit card, or 3) a “P” (Purchasing) card. You authorize us to utilize the payment method above in the event your invoice is not paid within thirty (30) days upon receipt of invoice. Balances not paid within forty-five (45) days after receipt of invoice shall incur interest in the amount of 1.5% per month from the date due until paid. That interest shall compound monthly on the first day of each subsequent month.
3.3. Taxes
Unless otherwise stated, Lead Engagements fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all taxes associated with client’s purchases hereunder. For clarity, Lead Engagements is solely responsible for taxes assessable against it based on income, property, and employees.
4. Confidentiality
Confidential or sensitive information one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) under this Agreement shall be governed as follows:
4.1 Confidential Information
“Confidential Information” means non-public and proprietary know-how and information disclosed under this Agreement, whether oral, written, or electronic, that:
Concerns the Services, the reports, the software, technology, customers, finances, methods, research, processes, or procedures of either Lead Engagements or Client.
Is designated as “Confidential” or “Proprietary” by the Disclosing Party at the time of disclosure or within a reasonable period thereafter.
Confidential Information includes, without limitation, information relating to the disclosing party’s software or hardware products which may include source code, API data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations, and development methods. It also includes information relating to the disclosing party’s business or financial affairs, such as business methods, marketing strategies, pricing, competitor information, product development strategies, client lists, and financial results.
Confidential Information also includes information received from others that the disclosing party is obligated to treat as confidential, as well as oral information identified by the disclosing party as confidential. Confidential Information disclosed by a subsidiary of the disclosing party and/or its agents is also covered by this Agreement. It includes all tangible materials that contain Confidential Information, whether written, printed, documents, computer disks, or tapes that are user or machine-readable.
Confidential Information shall not include:
- Information already known to the receiving party or its affiliates, free of any obligation to keep it confidential.
- Information that becomes publicly known through no wrongful act of the receiving party.
- Information received by the receiving party from a third party without any restriction on confidentiality.
- Information independently developed by the receiving party.
- Information disclosed to third parties by the disclosing party without any confidentiality obligation.
- Information approved for release by prior written authorization of the disclosing party.
4.2 Non-disclosure
The Parties agree to maintain the confidentiality of the Confidential Information and protect it as a trade secret by preventing any unauthorized copying, use, distribution, installation, or transfer of possession of such information. The Receiving Party shall retain the Disclosing Party’s Confidential Information in confidence and shall not use or disclose Confidential Information except for purposes permitted under this Agreement.
The Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, provided such employees are bound by non-disclosure obligations no less protective than those set out in this Agreement. Additionally, the Receiving Party may disclose Confidential Information to affiliates and vendors, provided such affiliates and vendors are bound by non-disclosure obligations no less protective than those set out in this Agreement.
4.3 Standard
Each Party will use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses in safeguarding its own, but not less than reasonable care.
Confidential Information shall not be copied or used for any purpose other than that for which it is disclosed to the receiving party.
Confidentiality obligations shall remain in effect indefinitely unless the Confidential Information becomes public through no breach of this Agreement, or until it is no longer confidential under the provisions of this Agreement.
4.4 Return of Confidential Information
Upon termination or expiration of this Agreement, or at the written request of the disclosing party, the receiving party shall return or destroy all copies of Confidential Information in its possession.
5. Limitation of Liability, Indemnification
5.1 Limitation of Liability.
In no event shall either party be liable to the other for indirect, punitive, special, exemplary, consequential, incidental, or other damages of any type or kind (including loss of data, revenue, profits, use, or other economic advantage), except direct damages, arising out of or in any way related to this agreement or the services. Except for a breach of section 4, in no event shall either party’s aggregate liability to the other under this agreement exceed the amounts paid by you to us.
5.2 Indemnification.
Client acknowledges that it understands and agrees that failure to include required notification of and/or consent to the use of cookies and related tracking technologies on Client’s website may result in liability under applicable state and national laws and/or regulations. To the extent that Client declines to include Lead Engagements’ supplied Cookie Consent notification and consent management features, Client agrees to fully and without reservation defend, indemnify, and hold Lead Engagements harmless from any claims, losses, or liabilities that may arise from or follow from the Client’s failure or refusal to make use of Lead Engagements’ Cookie Consent notification and consent management features.
6. General
6.1 No Waiver.
The failure of Lead Engagements to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
6.2 Severability.
If a court of competent jurisdiction finds any provision of this Agreement to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
6.3 No Agency.
For the purposes of this Agreement, the Parties will at all times be independent contractors with no right to bind or obligate the other in any manner whatsoever. Nothing in this Agreement shall operate to create a partnership between the Parties or authorize either Party to act as an agent for the other.
6.4 Non-Disparagement.
The Client agrees that it will not publicly disparage Lead Engagements or its services. Client agrees that it will address any dissatisfaction or complaints with Lead Engagements and/or its services exclusively and directly to Lead Engagements and will work in good faith with Lead Engagements to address any such dissatisfaction or complaints privately and directly.
6.5 Governing Law, Dispute Resolution, Jurisdiction.
Georgia law, without reference to rules governing conflict of laws, shall apply to this Agreement and any dispute between the Parties related hereto. Any such dispute shall be resolved through binding arbitration in Fulton County, Georgia. The foregoing shall not apply to injunctive relief sought with respect to any breach or alleged breach of Section 4. As a condition precedent to filing an action in a court of competent jurisdiction, the Parties agree to mediate their dispute within forty-five (45) days of either Party receiving notice of a request to mediate. The Parties shall agree on a mediator or, in the event the Parties cannot agree, each party shall choose a mediator who in turn shall choose the mediator to hear the dispute. The Parties, by written agreement, may treat the mediation as binding arbitration. The cost of mediation or binding arbitration shall be borne by the losing Party.
6.6 Entire Agreement.
This Agreement and the Lead Engagements policies cited herein, the terms of which are incorporated herein by reference, along with the Order Form executed between the Parties which is incorporated herein by reference, contains the entire understanding of the Parties regarding its subject matter and supersedes all prior agreements between the Parties, both oral and written, and can be modified only by a subsequent written agreement executed by both Parties. To the extent of any conflicts between the terms of this Agreement and the Order Form, the terms of this Agreement shall supersede those contained in the Order Form, except where the Order Form explicitly states that a given term or provision shall supersede this Agreement.
6.7 Counterparts.
The Parties may enter into this Agreement in counterparts, including facsimile, PDF, or other electronic copies, which taken together will constitute one instrument.
6.8 Force Majeure.
Lead Engagements shall not be responsible for failure to perform in a timely manner under this Agreement when its failure results from any of the following causes: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake, or serious accident, strike, labor trouble or work interruption, governmental action, pandemic, or any cause beyond its reasonable control. In addition, Lead Engagements shall not be responsible for equipment or component failures due to defective manufacturing or defective software or for delays in shipment of equipment or components timely ordered.
6.9 Services Conditioned upon Applicable Laws.
Lead Engagements shall provide its Services hereunder, including the Software, only to the extent permissible by all applicable laws, including but not limited to any applicable data privacy regulations. In the event that such applicable laws may make any portion of the Services illegal or may restrict Lead Engagements’ ability to provide such Services, whether in part, Lead Engagements reserves the right to suspend those Services to the extent that Lead Engagements deems reasonable and appropriate in its discretion in order to comply with such applicable laws. Such good faith efforts to comply with applicable laws shall not constitute a breach of this agreement but, rather, shall qualify as a Force Majeure event, as contemplated in Section 6.8, above.
6.10 Notices.
Any notice or other communication required or permitted shall be in writing and shall be deemed to have been duly given on the day of service if served personally or by facsimile transmission with confirmation, or three (3) days after mailing if mailed by First Class mail, registered or certified, postage prepaid, and addressed to the respective Parties at their principal place of business or at such other addresses as may be specified by either Party.
6.11 Independent Contractor.
Lead Engagements is an independent contractor. Neither Lead Engagements nor Client are, or shall be deemed for any purpose to be, employees or agents of the other, and neither Party shall have the power or authority to bind the other Party to any contract or obligation. Lead Engagements has the sole authority to direct the work of its employees and determine the materials necessary to perform their duties pursuant to the terms of the contract. Lead Engagements shall retain the right to perform work for others during the term of the consulting engagement.
7. Definitions
7.1 “Client Information” means information generated by Client or by Client’s customers or visitors to Client’s online points of presence.
7.2 “Lead Engagements” is a set of bundled, software-driven digital marketing data-gathering and analysis tools offered by us, which comprises multiple modules, applications, platforms, interfaces, analytic engines, etc. The subset of the Lead Engagements tools provided by us to you under this Agreement is set forth in detail in the Order Form.
7.3 “Documentation” means any materials created or owned by Lead Engagements in either machine-readable or written form that are communicated to Licensee and are intended to describe the use or characteristics of software.
7.4 “Lead Engagements IP” means methods, algorithms, inventions, know-how, information, data, concepts, ideas, methodologies, trade secrets, trade or service marks, logos, and other elements, including but not limited to computer object and/or source code.