This First Leads Terms of Service and Service Agreement (this “Agreement”) shall govern the Client’s (as defined below) rights to access and use the Services (as defined below) provided by First Leads, Inc. (“First” and, together with Client, the “Parties”, and each, a “Party”). BY EXECUTING THE SERVICE ORDER THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
1. Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1 or as otherwise defined in the Service Order attached hereto and incorporated herein by reference:
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosted Services.
“Affiliate” of a Party means any other third-party that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract or otherwise/ownership of more than fifty percent (50%) of the voting securities of a Party.
“Authorized User” means each employee of the Client that has been granted valid Access Credentials.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to be closed for business.
“Client” means the client identified on the applicable Service Order.
“Client Data” means information and data that is collected, uploaded or otherwise received, directly or indirectly, from Client or an Authorized User by or through the Services. For avoidance of doubt, Client Data excludes Derived Data.
“Contract Year” means each 12-month period commencing on the date on which the First Software is first made available to Client via the Hosted Services and each subsequent anniversary of such initial availability date.
“Derived Data” means information, data and other content that is derived by or through the Services from processing Client Data and is sufficiently different from such Client Data that such Client Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
“Documentation” means the online user guide, if any, applicable to the operation of the First Software.
“Effective Date” means the Order Date specified on the Service Order.
“Fees” means the fees and other charges as set forth in the Service Order.
“First Materials” means the First Software, Documentation and First Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by First or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or First Systems. For the avoidance of doubt, First Materials include Derived Data and any information, data or other content derived from First's monitoring of Client's access to or use of the Services, but does not include Client Data.
“First Software” means First’s proprietary, web-based, online software application(s) identified in the Service Order, and all new versions, updates, revisions, improvements and modifications thereof, which First provides remote access to and use of as part of the Services.
“First Systems” means the information technology infrastructure used by or on behalf of First in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by First or through the use of third-party services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Representatives” means, with respect to a Party, that Party's and its Affiliates' employees, officers, directors, agents, independent contractors, subcontractors and legal advisors.
“Service Order” means the First Leads Service Order executed and delivered by the client identified therein and First.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to First, including any third-party: (a) documents, data, content or specifications; (b) any software component that is subject to any open-source copyright license agreement or other third-party software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
2.1 Services. Subject to and conditioned on Client's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, First shall use commercially reasonable efforts to provide to Client and its Authorized Users the following services (collectively, the “Services”): (a) the hosting, management and operation of the First Software and other services for remote electronic access and use by the Client and its Authorized Users (“Hosted Services”); (b) the Support Services described in Section 4; and (c) such other services as may be specified in the Service Order. First reserves the right to make any changes to the Services and First Materials that it deems necessary or useful.
2.2 Suspension or Termination of Services. First may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend, terminate or otherwise deny Client's and/or any Authorized User's access to or use of all or any part of the Services or First Materials, without incurring any resulting obligation or liability, if Client or any Authorized User has failed to comply with any material term of this Agreement (including, without limitation, accessed or used the Services beyond the scope of the rights granted herein), and has failed to cure such non-compliance within ten (10) days after written notice thereof from First. This Section 2.2 does not limit any of First's other rights or remedies, whether at law, in equity or under this Agreement.
3. Authorization and Client Restrictions.
3.1 Authorization. Subject to and conditioned on Client's and its Authorized Users' compliance with the terms and conditions of this Agreement, First hereby authorizes Client to access and use, during the Term, the Services and such First Materials as First may supply or make available to Client solely for Client’s internal business purposes by and through Authorized Users in accordance with the Documentation. This authorization is non-exclusive and, other than as may be expressly set forth in Section 11.5, non-transferable.
3.2 Client Responsibilities. Client shall obtain and maintain any and all consents required to facilitate and enable First’s storage, accessing, processing and use of the Client Data contemplated by this Agreement. Client represents that First’s storage, accessing, processing and use of the Client Data, as contemplated by this Agreement, does not (and shall not) violate any third-party rights, including any privacy and/or Intellectual Property Right, and/or any applicable laws. Client acknowledges that it is solely responsible for creating backup copies of the Client Data and that First is not obligated to back up the Client Data.
3.3 Authorization Limitations and Restrictions. Client shall not, and shall not permit any other person to, access or use the Services or First Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, any applicable third-party license agreement(s). For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits: (a) copy, modify or create derivative works or improvements of the Services or First Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or First Materials to any third-party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or First Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or First Materials or access or use the Services or First Materials other than by an Authorized User through the use of its then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services or First Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious or harmful computer code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, First Systems or First's provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or First Materials, including any copy thereof; (h) access or use the Services or First Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; or (i) access or use the Services or First Materials for purposes of (A) competitive analysis of the Services or First Materials, (B) the development, provision or use of a competing software service or product, (C) copying any ideas, features, functions or graphics of the Services. Violation of any provision of this Section shall be the basis for immediate termination of the Services by First.
4. Support Services. Payment of the Fees in accordance with the terms of this Agreement shall entitle Client to First’s standard support services (as amended from time-to-time, the “Support Services”) during each Contract Year. Support Services shall include telephone and e-mail support between 9:00 a.m. and 5:00 p.m. (Eastern time) on each Business Day to: (a) provide technical and operational assistance for the use of the Hosted Services and First Software, and (b) attempt to correct any reproducible failure of the Hosted Services (including the First Software) to perform in accordance with the Documentation. Client shall provide all information and assistance reasonably requested by First in connection with providing such Support Services. Notwithstanding anything to the contrary stated herein, Support Services exclude: (a) support for software or hardware that is not part of the First Systems; (b) support for any part of the Client's information technology infrastructure (e.g., computers, software, hardware, databases and networks), whether operated directly by Client or through the use of third-party services; (c) on-site training assistance; (d) on-site dispatch of First personnel; and (e) performance of any professional, consulting or advisory services.
5.1 Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. Subject to Section 5.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology (including source code), trade secrets, know-how, business operations, plans, strategies, customers, pricing information, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all First Materials are the Confidential Information of First.
5.2 Exclusions and Exceptions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) information that was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
5.3 Protection of Confidential Information. The Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted under the terms and conditions of Section 5.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; and (ii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 5; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its confidential information and in no event less than a reasonable degree of care; and (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information.
5.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 5.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
6. Fees and Payment.
6.1 Fees. Client shall pay to First the Fees in accordance with the terms of the Service Order and this Section 6. All payment obligations are non-cancelable and all Fees paid are non-refundable.
6.2 Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on First's income.
6.3 Payment. Client shall make all payments hereunder in US dollars. Client shall, upon the written request from First, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of such Automatic Payment Method, First is hereby authorized to charge the Fees using such Automatic Payment Method. Except as set forth in this Agreement, invoiced amounts are due net 30 days from the invoice date.
6.4 Late Payment. If Client fails to make any payment when due then, in addition to all other remedies that may be available to First, First may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law.
7. Intellectual Property Rights.
7.1 Services and First Materials. All right, title and interest in and to the Services and First Materials, including all Intellectual Property Rights therein, are and will remain with First and the respective rights holders in the Third-Party Materials. Client has no right, license or authorization with respect to any of the Services or First Materials (including Third-Party Materials), except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.2. All other rights in and to the Services and First Materials (including Third-Party Materials) are expressly reserved by First and the respective third-party licensors. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to First an assignment of all right, title and interest in and to the Derived Data, including all Intellectual Property Rights relating thereto.
7.3 Public Data. In order to provide the Services, First may combine the Client Data with information from the following third-party sources to create more complete data records: (a) third parties who license, sell or otherwise provide data they have collected; and (b) information from publicly available sources, such as public county records, via the Internet and social networks, including through public or licensed APIs (“Public Data”). First does not collect data from webpages that have been designated (in a standards-based way) as private. Nothing shall restrict First’s right to use, access, process, collect, disclose, share or distribute any Public Data, even if such Public Data is duplicative of the Client Data.
8. Term and Termination.
8.1 Term. Unless otherwise terminated in accordance with this Agreement, the initial term of this Agreement shall commence on the Effective date and shall continue for the number of Contract Years specified in the Service Order (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive Contract Years unless earlier terminated pursuant to any of the Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least ninety (90) calendar days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
8.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement, this Agreement may be terminated at any time by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and fails to cure such breach within 30 days after written notice of such breach from the non-breaching Party.
8.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, (a) all rights, licenses and authorizations granted by either Party to the other hereunder will immediately terminate; (b) Client shall immediately cease all use of any Services or First Materials and promptly return to First, or at First's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any First Materials or First's Confidential Information; and (c) First shall make all Client Data available to Client for electronic retrieval for a period of thirty (30) days, but thereafter First may, but is not obligated to, delete stored Client Data.
9. Representations and Warranties.
9.1 Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that: (a) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement; (b) the execution of the Service Order by its representative has been duly authorized by all necessary corporate or organizational action of such Party; (c) when the Service Order is executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (d) it shall comply with all applicable laws, including all applicable privacy laws.
9.2 Limited Warranty. First shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by First or by third-party providers, or because of other causes beyond First’s reasonable control, but First shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, FIRST 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 ARE PROVIDED “AS IS” AND FIRST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, FIRST’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT, OR AT LAW WITH RESPECT TO ANY SERVICES PROVIDED BY FIRST (WHETHER NEGLIGENT OR OTHERWISE), WILL BE LIMITED TO THE TOTAL FEES PAID (LESS ANY REFUNDS OR CREDITS) BY CLIENT TO FIRST UNDER THIS AGREEMENT IN THE PRECEDING TWELVE (12) MONTH PERIOD. IN NO EVENT WILL FIRST BE LIABLE TO CLIENT UNDER, IN CONNECTION WITH OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE, INCLUDING NEGLIGENCE, AND WHETHER OR NOT FIRST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE A CONDITION AND MATERIAL CONSIDERATION FOR THEIR ENTRY INTO THIS AGREEMENT. CLIENT SHALL INDEMNIFY FIRST AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY LOSS, DAMAGE, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING FROM OR ASSOCIATED WITH (A) ANY ACTIONS OR OMISSIONS OF CLIENT, (B) THE BREACH OF THIS AGREEMENT BY CLIENT, (C) NON-COMPLIANCE WITH ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, OR (D) ANY INTELLECTUAL PROPERTY OR CONTENT PROVIDED BY CLIENT TO FIRST.
11.1 Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority.
11.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.3 Notices. All notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); or (c) by certified or registered mail, return receipt requested (upon verification of receipt). In each case, such notices shall be addressed to a party at such party’s address set forth in the Service Order (or such other address as updated by such party from time-to-time by giving notice to the other party in the manner set forth in this Section 11.3).
11.4 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
11.5 Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without First's prior written consent. Any purported assignment, delegation or transfer in violation of this Section 11.5 is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
11.6 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.7 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.8 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflicts of law provision or rule thereof. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
11.9 Equitable Remedies. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 (Authorization and Client Restrictions), Section 5 (Confidentiality) or Section 7 (Intellectual Property Rights) of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.