Last Updated: August 5th, 2020
WE MAY CHANGE THESE TERMS FROM TIME TO TIME BY POSTING A REVISED VERSION OF THE TERMS ON THIS SITE. PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SITE AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS.
In order to access some services offered via the Site, you may be required to agree and execute a LeadIQ Master Subscription Agreement and Order Form and/or other relevant agreements (“Agreements”) as required by LeadIQ, and may obligate you to additional responsibilities when using the Site.
You acknowledge and agree that at all times in your use of the Site you will: (i) comply with the Terms; (ii) comply with all applicable law, rules and regulations; (iii) keep secure, confidential and comply with all international privacy laws and regulations, including but not limited to the General Data Protection Regulation (“GDPR”), applicable to any personal data you collect and use in connection with the Site, and have measures in place that safeguards the privacy rights of individuals; (iv) monitor and control all activity conducted through your account in connection with the Site, including preventing unauthorized access to or use of the Site.
1.4 Prohibited Use
You acknowledge and agree that at all times in your use of the Site you will not do the following:
If you undertake any of the aforementioned actions at 1.4, your privileges to use the Site may, at our discretion, be terminated or suspended in accordance with section 5.3 and 5.4.
LeadIQ owns the proprietary software application (“Licensed Software”) that you may be granted access to through the Site. The name “LeadIQ,” the design of the LeadIQ Site along with LeadIQ created text, writings, images, templates, scripts, graphics, interactive features and the trademarks, marks and logos contained therein (“Marks”), are owned by or licensed to LeadIQ. The Marks are subject to copyright and other intellectual property rights under US laws and international conventions.
You agree the Licensed Software and Marks are the property of LeadIQ or its third party licensors and that you have no ownership, right, title, interest, nor any part thereof, in the Licensed Software and Marks, except for the limited licence at section 1.2. LeadIQ reserves all rights not expressly granted in and to the Site. You agree to not engage in the use, copying, or distribution of anything contained within the Site unless we have given you express written permission.
If Users procure services, applications, or online content from a third party (“Third Party Products”) for use with the Site, any such use is subject to the end-user license or use agreement the User accepts from or establishes with the third party. LeadIQ has no liability with respect to User’s procurement or use of Third Party Products.
The Site may contain links to third party websites that are not owned or controlled by LeadIQ. LeadIQ has no control over, and assumes no responsibility for, the content, policies or practices of third party websites.
In order to use and access the Site, you agree to pay the monthly or annual fee for your Subscription as detailed on the Site, and/or Agreements or invoices (the “Fees”). All Fees are non-refundable. Upon renewal of a Subscription, the Fees may be subject to change. LeadIQ will provide User with notice in advance of any Fee changes.
4.2 Payment Terms
Unless otherwise provided, LeadIQ will charge Users the Fees on an annual or monthly basis in advance. For settlements of the Fees using credit cards, you authorize us to use a PCI-compliant third party payment processor to process your payment information. If payment will be by a method other than a credit card, we will invoice you in advance. Invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
Any and all disputes over the Fees must be raised by you via a written notice no later than 10 (ten) days after the invoice date. For any undisputed amount due and not paid by you, we will provide you with notice of non-payment and reserve the right to suspend your access to the Site if payment is not made within thirty 30 (thirty) days after such notice. Except as prohibited by law, LeadIQ may charge a late fee of one and one-half percent (1.5%) per month on past due amounts.
Amounts due to LeadIQ from User shall not be withheld or offset against amounts due or alleged to be due to User from LeadIQ.
You are responsible for any applicable taxes, including and without limitation, any sales, use, levies, duties, value added or similar taxes payable and assessed by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise all fees, rates, and estimates provided by us exclude taxes.
4.4. Subscription Credits
Subscriptions with credits do not roll over and will reset every 30 calendar days, unless stipulated otherwise in any Agreements. Should you want to replenish your credits before your next reset date, a written notice must be provided to us and you grant us authority to charge you for a full subscription cycle (for monthly subscriptions) or for an invoiced amount based on a customized value. Payments for credits are non-refundable and non-disputable. User acknowledges that these credits have no cash value and are not redeemable for cash or any other equivalent currency.
5.1. Term and Renewals
Unless your Subscription is terminated in accordance with section 5.2, your Subscription to the Site will automatically renew for the same term as your initial Subscription. We reserve the right to change the Fees upon renewal in accordance with section 4.1.
Either Party may elect to terminate the Subscription at the end of the current Subscription term by providing written notice no less than thirty (30) days prior to the end of such Subscription term. User agrees that no refunds or credits for any part of the Fees will be made. Upon termination, User’s right to access and use the Site shall immediately terminate and User will immediately cease use of the Site.
5.3. Termination for Cause
Either party may terminate the Subscription for cause (a) upon written notice to the other party of a material breach of the Terms if such breach remains uncured at the expiration of thirty (30) days from the date of receipt of such written notice; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In no event will termination discharge User of the obligation to pay the Fees.
5.4. Suspension of Access
LeadIQ may suspend User’s access to the Site immediately if: (a) User fails to make a payment for more than thirty (30) days following its due date; or (b) User has, or LeadIQ reasonably suspects based on documented evidence that User has, breached section 1.4, or misappropriated or infringed LeadIQ’s intellectual property rights. LeadIQ will have no liability to you for the period of suspension.
6.1. Confidential Information
“Confidential Information” means all information of a party disclosed to the other party, whether orally or in writing, that is designated as confidential or is information which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, any pricing information, any proprietary materials provided, including product plans, technology and technical information, business and marketing plans and business processes disclosed by such party.
6.2. Confidentiality and Disclosures
Each party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each party may use the other party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms.
Each party may disclose Confidential Information (a) solely to the employees and/or non-employee service providers and contractors on a need to know basis and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.
6.4 Data Processing Addendum (“DPA”)
For data processing and international data transfers subject to GDPR, the parties shall execute a DPA with Standard Contractual Clauses, and the terms of such DPA shall be incorporated into these Terms by reference.
Each party represents and warrants that it has the requisite power and authority to enter into the Terms, and that User will use the Site, and LeadIQ will provide the Site to User, in accordance with all applicable laws, rules and regulations.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR APPLICATIONS. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH YOUR SUBSCRIPTION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
You agree to defend, indemnify and hold harmless LeadIQ, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: i) your use of and access to the Site; ii) your violation of any of the Terms; and iii) any claim that your use of the Site harmed a third party. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under the Terms. In such cases, you agree to cooperate with any reasonable requests assisting us in the defense of such matters. This indemnification will survive the Terms and your use of the Site.
9.1 Exclusion of Damages
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS AT SECTION 8, IN NO EVENT WILL EITHER PARTY OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL), WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Limitation of Liability
LEADIQ’S AGGREGATE LIABILITY TO USER WITH RESPECT TO ANY SINGLE INCIDENT OR SERIES OF RELATED INCIDENTS ARISING OUT OF THESE TERMS SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY USER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. USER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THE ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LEADIQ TO USER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
10.1 Informal Dispute Resolution
In the event of any controversy or claim arising out of or relating to the Terms, the parties agree to use their reasonable efforts to settle any dispute, claim or disagreement directly through consultation (“Informal Dispute Resolution”), and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time Informal Dispute Resolution is initiated, then either party may initiate binding arbitration as the sole means to resolve claims subject to the terms set forth below.
10.2 Mandatory Arbitration
You and LeadIQ hereby agree that any dispute, claim, or disagreement arising out of relating to the Terms and the Site will be settled in binding arbitration between you and LeadIQ, and not in a court of law. The Federal Arbitration Act governs the interpretation and enforcement of this obligation to arbitrate.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures available at www.adr.org (“Rules”). Arbitration shall be conducted by one (1) arbitrator as selected pursuant to the Rules. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for their own arbitration fees and costs.
Arbitration shall be initiated and take place in Santa Clara, California. If the relief sought is less than US $10,000, then either party may choose whether the arbitration will be conducted on the basis of documents provided to the arbitrator or through a telephonic hearing, subject to the arbitrator’s discretion to require an in-person hearing.
10.3 Class Action Waiver
You and LeadIQ agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.
This section 10 shall survive the termination of the Terms and your use of the Site.
Users may, from time to time, provide suggestions, comments, corrections, ideas, enhancement or feature requests or other information (collectively “Feedback”) to LeadIQ with respect to the Site. You grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Site any Feedback provided by you relating to the operation of the Site.
Neither party may transfer or assign its rights or obligations under the Terms to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities.
All notices under the Terms shall be in writing and be deemed to have been given upon: (i) personal delivery, (ii) two (2) business days after mailing or deposing with a nationally recognized courier, (iii) two (2) business days after after sending by confirmed facsimile, or (iv) immediately upon delivery by electronic mail (provided email shall not be sufficient for notices of an indemnifiable claim). Notices to LeadIQ shall be addressed to LeadIQ, Inc, Attn: CEO; 611 Gateway Blvd. Floor 2, South San Francisco, CA, 94080. Billing-related notices to Users shall be addressed to the relevant billing contact designated by User.
11.4 Governing Law
Notwithstanding you and LeadIQ’s agreement to mandatory arbitration at section 10.2, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in Santa Clara, California, as necessary to protect the party's rights or property pending the completion of arbitration. You and LeadIQ hereby submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Santa Clara, California.
11.5 Force Majeure
Except for the User’s payment obligations, neither party shall be liable for any delay or failure in performance of to the extent caused by a condition, such as natural disaster, an act of war or terrorism, acts of God, riot, labor condition, governmental action, Internet disturbance, or acts undertaken by third parties, including without limitation, denial of service attack that was beyond the party's reasonable control.
If any provision of the Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Terms will remain in effect.
No failure or delay by either party in exercising any right under the Terms will constitute a waiver of that right.
11.8 Entire Agreement
Except as expressly agreed to in writing by us, the Terms constitute the entire agreement between the parties with respect to the Site, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties. In the event you execute any Agreements with us and there is any conflict or inconsistency with the Terms, the order of precedence shall be: (1) the Agreements, and (2) these Terms.