BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE USING OR ACCESSING THE COMPANY PLATFORM (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY PLATFORM.
This Agreement, by and between Customer and Leadtalk (“Leadtalk”), is effective as of the date of Acceptance (the “Effective Date”) and governs Customer’s use of Leadtalk’s software-as-a-service platform for scaling and improving sales and revenue processes using real-time customer intelligence, including any software, documentation or data related thereto (the “Leadtalk Platform”). Each of Leadtalk and Customer may be referred to herein individually as a “Party” or collectively as “Parties.”
1.1 Access to Platform. Leadtalk will make the Leadtalk Platform available to Customer. Subject to the terms and conditions of this Agreement, Leadtalk hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicenseable right to access and use the Leadtalk Platform solely for Customer’s internal business purposes.
1.2 License Restrictions and Responsibilities. Customer will not use the Leadtalk Platform for any purpose other than the purposes expressly set forth herein. Customer may not, directly or indirectly:
1.3 License to Customer Data. Customer hereby grants to Leadtalk:
1.4 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Leadtalk with respect to the Leadtalk Platform. Leadtalk will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby assigns to Leadtalk all right title and interest in and to the Feedback, including intellectual property rights, and acknowledges that Leadtalk may freely develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
Customer acknowledges and agrees that, as between the Parties, Leadtalk retains all right, title and interest in and to the Leadtalk Platform and all intellectual property rights therein and thereto. Leadtalk grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Leadtalk Platform. Customer will acquire no right, title, or interest in and to the Leadtalk Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, Customer retains all right, title and interest in and to the Customer Data.
Customer will pay to Leadtalk any fees set forth on the Order Form in accordance with the terms and conditions set forth herein. Payment obligations are non-cancelable and fees paid are non-refundable.
Unless o'therwise stated in the Order Form, Leadtalk will provide an invoice to Customer for any fees due to Leadtalk. Customer will pay all fees within thirty (30) days of receipt of any such invoice. If payment is not made when due, a late fee will accrue.
Customer will be solely responsible for payment of any taxes, except those based on Leadtalk’s income. Customer will not withhold any taxes from amounts due Leadtalk.
The term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form. It will automatically renew unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the current term.
Upon termination, all rights with respect to the Leadtalk Platform will immediately terminate. Customer must cease use of the platform, return or destroy Leadtalk’s confidential information, and pay all amounts due to Leadtalk.
Upon termination, certain obligations will survive, including those related to license restrictions, feedback, ownership, payment terms, and confidentiality.
“Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof. For the avoidance of doubt, the Leadtalk Platform is Confidential Information of Leadtalk.
Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. Leadtalk will use reasonable efforts consistent with prevailing industry standards to maintain the Leadtalk Platform in a manner which minimizes errors and interruptions. Notwithstanding the foregoing, the Leadtalk Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Leadtalk or by third-party providers, or because of other causes beyond Leadtalk’s reasonable control, but Leadtalk will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE COMPANY PLATFORM WILL BE SECURE OR UNINTERRUPTED.
EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8.1 Indemnification by Leadtalk: Leadtalk will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs, and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the Leadtalk Platform infringes any United States copyright (except for claims for which Leadtalk is entitled to indemnification under Section 8.2, in which case Leadtalk will have no indemnification obligations with respect to such claim). Leadtalk will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by:
8.2 Indemnification by Customer: Customer will indemnify, defend and hold Leadtalk and the officers, directors, agents, and employees of Leadtalk (“Leadtalk Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Leadtalk Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with any use by Customer of the Leadtalk Platform in violation of this Agreement.
8.3 Action in Response to Potential Infringement: If the use of the Leadtalk Platform by Customer has become, or in Leadtalk’s opinion is likely to become, the subject of any claim of infringement, Leadtalk may at its option and expense:
8.4 Indemnification Procedure: If a Customer Indemnified Party or a Leadtalk Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense, and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
Customer may not remove or export from the United States or allow the export or re-export of the Leadtalk Platform, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Leadtalk Platform (including the software, documentation, and data related thereto) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
The terms and conditions of this Agreement are severable. 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. Neither Party may assign this Agreement without the other Party’s prior written consent; provided, that, either Party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise. Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns.
Both Parties agree that this Agreement and the Order Form are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Order Form, the terms of this Agreement will prevail, unless the Order Form expressly amends a provision in this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. All notices under this Agreement will be in writing and sent to the recipient’s address set forth above and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; 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.
Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”).
Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party.
This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
Customer acknowledges that any unauthorized use of the Leadtalk Platform will cause irreparable harm and injury to Leadtalk for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Leadtalk will be entitled to injunctive relief in the event Customer uses the Leadtalk Platform in violation of the limited license granted herein or uses the Leadtalk Platform in any way that results in harm or injury to Leadtalk’s business, reputation or goodwill.
No waiver of any provision of this Agreement will be deemed a continuing waiver or a waiver of any other provision, whether or not similar. No failure to exercise or delay in exercising any right, power or privilege hereunder will operate as a waiver of any such right, power or privilege.
