1. Definitions and interpretation
1.1 In this Agreement:
"Customer Materials" all data and materials:
(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and
(b) otherwise provided by the Customer to the Provider in connection with this Agreement;
"Defect" means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors; or
(b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in this Agreement;
"Personal Data" has the meaning given to it in the California data breach notification law, SB1386;
"Permitted Purpose" means Customer’s use of the Platform and Services in order to attract, process and lawfully sell legally collected Internet traffic to any third parties;
"Platform" means the software platform known as LeadsGate.com that is owned and operated by Us, and that will be made available to You as a service via the Internet under this Agreement;
"Support Services" means first level support and maintenance services provided or to be provided by the Provider to the Customer in accordance with this Agreement;
"Regulations" means all applicable laws, rules and regulations including, without limitation, the Gramm-Leach Bliley Act, 15 U.S.C. §§6801-6809, Regulation P, 12 C.F.R. pt. 1016, Regulation Z, 12 C.F.R. 1026, the Electronic Transfer Act, 15 U.S.C §1693, Regulation E, 12 C.F.R. pt. 205, the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§6101-6108, the Telemarketing Sales Rule, 16 C.F.R. pt. 310, the Fair Credit Reporting Act (U.S.C. §1681m(a)), Regulation V, 12 C.F.R. pt. 1022 the Federal Trade Commission Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act (42 U.S.C. 227), provisions relating to the National Do Not Call Registry ((16. C.F.R. Part 310) and applicable state Do Not Call List requirements), the Truth-in-Lending Act (15 U.S.C. 1601 et seq.), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Debt Collection Practices Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act including but not limited to Section 1031 and 1036, 12 U.S.C §§5531, 5536, Section 5 of the FTC Act, the Home Mortgage Disclosure Act, the Real Estate Settlement Procedures Act, the Secure and Fair Enforcement for Mortgage Licensing (SAFE) Act, the Fair Debt Collection Practices Act, the Federal Communications Act, The Federal Trade Commission Act (15 U.S.C. §§41-58), Do Not Track Online Act of 2013, the California Financial Privacy Act and any other relevant State or Federal consumer financial laws.
2. Term of this Agreement
2.1 The term of this Agreement (“Term”) shall commence upon the Effective date and shall continue until a) any party terminate this Agreement or b) until Provider’s rights to Products or Software are terminated or expired or c) until the Customer’s account in the Platform is terminated or blocked, depending on what circumstance will come first.
3. The Platform and Services
3.1 Subject to Revenue-Share licensing option the Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account as soon as practicable. According to the terms and conditions of Revenue-Share licensing option as described below in article 6, You entitle Us to receive your revenue statistics directly from Your account in the Platform, solely in order to allow Us to invoice You in accordance to the payment terms below. You will make sure that such statistics will not be blocked or hidden towards Us.
3.2 We will provide You with access to creative materials available through Customer’s account in the Platform for download, use, and distribution by You, subject to the license set forth below and the other provisions of this Agreement. The creative materials consist of an application form (“js-form”); (ii) banner ads or context ads (“Ads”); and (iii) a pre-designed web page to be used with Your chosen uniform resource locator (“URL”). For practical reasons we bind all the Customers who embed and activate the js-form pertained to leadsgate.com to their website/websites by an obligation to create a separate email individually for further communication purposes. The email should be registered in the following format: email@example.com , where “domain.com” is the URL of the site with embedded form. It’s essential that the stated email is active contemporaneously with the embedded js-form, as end users (applicants) will use the stated email address to contact corresponding Customers regarding the issues concerning application and services. For this reason, Customers are required to check this email regularly, maintain contact with end users and reply to their enquiries and claims accordingly. Additionally, Customers are to notify us about the end users’ enquiries and claims via Contact page.
3.3 Upon your respective order we will provide you with Our standard technical services and solutions, described below, that are provided “as is” and in no case shall be considered as tailored made. We will maintain and support our Platform on a regular daily basis.
3.4 Subject to the limitations and prohibitions set out in Clause 3.5, the Provider hereby grants to the Customer a the non-exclusive, non-assignable, worldwide lease right to access and use the Platform and Services ordered during the Term solely for Customer’s internal business operations and subject to the terms of this Agreement.
3.5 The licence granted by the Provider to the Customer under Clause 3.4 is subject to the following limitations:
(a) Platform and Services may only be used for Permitted Purpose only. The Customer must not use the Platform in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. Transmission, storage, or distribution of any information, data, or material in violation of any applicable laws or Regulations is prohibited. This includes, but is not limited to: intellectual property rights used without proper authorization; personal data improperly or illegally used or received; marketing materials and ads prohibited for distribution by laws of any countries, including UK, USA; fraud traffic (including click fraud) or any other data that was received, transmitted, stored or distributed illegally by the Customer and/or material that constitutes an illegal threat or violates export control laws. Unauthorized and/or unacceptable use of the Platform and Service is a violation of this Agreement and may result in LeadsGate terminating Your account immediately upon receipt of third party’s claim or upon the results of LeadsGate own internal investigations. Should LeadsGate reasonably suggest that the Customer uses the Platform or Services for unlawful purposes or violates any of its obligations hereunder, LeadsGate will investigate the issue and until the end of Ledasgate internal investigations no payments to the Customer will be available.
(b) You may not remove or modify any program markings or any notice of LeadsGate or its licensors' proprietary rights; modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Platform and Services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by programs) or otherwise infringe or attempt to infringe LeadsGate intellectual property rights; license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing use, or otherwise commercially exploit or make available the Services or Product to any third party, other than as expressly permitted under the terms hereof.
(c) You shall not use “LeadsGate” or other trademarks, logos or designations that belong to Us in your business, also You shall not make any references or declarations that You are an agent, affiliate, subsidiary, subcontractor or employee of Us except otherwise is agreed by Us in written in the document signed by an authorised representative of Us.
4. Support Services and Upgrades
4.1 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.
4.2 During the Term hereof We will provide You with the first level technical support on the on-demand basis. First level technical support includes:
- Maintenance of web access to Portal Customer’s account, including an Customer panel.
- 24/7/365 email support with total coverage of all Our Services and Products. Submit tickets to Our support via the Support Section in Your Portal account or via the following e-mail: firstname.lastname@example.org. You will be able to communicate with Us support through the email notifications received from LeadsGate’ support team.
Individual “tailored” services like custom implementation, customization, migration or deployment are not covered by this Agreement. Such services need to be ordered separately as Our professional services.
4.3 Updates and upgrades are included for download in all pricing. The First level support is included into the license fees.
5.1 LeadsGate hereby authorizes the Customer during the Term hereof, to use, reproduce, and display LeadsGate Promotional Materials, and to distribute Promotional Materials on its website(s). When reproducing Promotional Materials, Customer shall not remove, obliterate, or alter any of the LeadsGate marks or logos that appear therein, or any other copyright, patent, trademark, or proprietary rights notice that appears therein, and Customer shall reproduce all copyright, patent, trademark, or other proprietary rights notices that appear therein. Customer is not permitted to create derivative works from the Promotional Materials. Customer shall be solely responsible for compliance of its marketing campaigns, promotional materials and methods of promotion to any applicable laws and Regulations. Under conditions of a separate agreement Customer shall receive payments for each individual that Customer refers to LeadsGate who also becomes an active Customer of LeadsGate Platform and Services (“Referral”).
6. Charges and Fees
6.1 As a payment for lease rights to use the Platform and Services the Provider will charge Customer at a revenue share percentage agreed by the parties in each particular invoice for any amount received through Providers’ Portal in the corresponding accounting period. In order to secure that payments will be made to the Provider, the Customer hereby agrees and appoints the Provider to receive on behalf of the Customer payments due to the Customer for Customer’s services made through the Platform or with Provider’s Services use to the Provider’s bank or payment accounts. Customer agrees that Provider is authorized to withhold fees due to the Provider from the Customer’s revenue amounts collected or received to the Provider’s bank or payment accounts after the amount of the fee due to the Provider is agreed by the parties. Any questions or disputes regarding the amount of fees due to the Provider must be submitted in writing to LeadsGate within five (5) business days of the date when the Provider’s invoice and supporting data became available to the Customer on the Customer’s account in the Platform; otherwise, the information contained therein will be deemed accurate and accepted by the Customer. LeadsGate will investigate and resolve any payments-related questions or disputes in its sole discretion. All determinations made by LeadsGate in connection with the payments due to the Customer shall be final and binding on the Customer.
6.2 LeadsGate shall transmit the amounts earned by the Customer less the Provider’s fee and payments-transfer (or bank) commission approximately ten (10) days after the Customer orders the transfer of these amounts from LeadsGate. Such payments shall only be made to the Customer provided the applicable Customer’s account has reached a minimum of 100$ in accrued funds. Customer’s accounts that have accrued a balance below 100$ shall continue to roll over to the next payment period until an amount equal to or greater than 100$. Should Customer net more than 1000$ in weekly receipts during any one (1) week, this Customer may request to be paid approximately seven (7) days after the Customer orders the transfer of the respective funds from LeadsGate. All payments shall be in U.S. Dollars. Payments are considered as have been duly made after the amounts due to the Customer are written of the payment (or bank) account of the Provider. Affiliate shall be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Affiliate’s business done using the Platform or Services. LeadsGate may require Affiliate to provide any tax identification information, as a condition precedent to receiving any payments from the Provider. Upon termination of this Agreement LeadsGate shall transmit to the Customer all sums due to the Customer less Provider’s relevant fee and commissions.
7.1 Except as expressly provided herein, Customer shall bear and assume all costs and expenses arising from its performance of its use of Platform and Services, as well as from its obligations under this Agreement, including, without limitation, expenses for facilities, work space, utilities, management, technical marketing activities, except otherwise is agreed by the parties. Each party shall bear the risk of loss of, and damage to, any equipment, software, data or other materials in its possession or under its control.
8. Disclaimer of Warranties
8.1 LEADSGATE WARRANTS THAT LEADSGATE HAS THE RIGHT TO LICENSE THE SOFTWARE TO THE CUSTOMER. EXCEPT FOR THE AFOREMENTIONED WARRANTIES, THE PLATFORM, PRODUCTS AND SERVICES LICENSED IN CONNECTION WITH THE PRESENT AGREEMENT ARE PROVIDED ‘AS IS’ AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDED, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE ARE DISCLAIMED. WITHOUT LIMITATION OF THE FOREGOING, LEADSGATE SPECIFICALLY DOES NOT WARRANT THAT THE PLATFORM OR SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR CUSTOMER’S POTENTIAL CLIENTS OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER SHALL NOT MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF LEADSGATE. CUSTOMER SHALL BE SOLELY AND COMPLETELY RESPONSIBLE FOR ANY CONSEQUENCES ARISING FROM ANY REPRESENTATION OR WARRANTY THAT CUSTOMER MAKES TO ANYONE RELATING TO THE PLATFORM, SERVICES OR PARTIES’ RELATIONS HEREUNDER.
9.1 You agree to indemnify, defend and hold harmless LeadsGate from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from or related to Customer Materials, Your use of the Platform, Service and/or any breach of this Agreement by You. You further agree to defend, indemnify and hold harmless LeadsGate from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from or related to any claims by third parties that Customer Materials or Your use of the Platform and Service infringes upon, violates or misappropriates any Regulations, third parties rights or interests of any nature or discloses their Proprietary Information.
10. Limitations and exclusions of liability
10.1 In the event of any Defect in the Platform or its part, LeadsGate may at its own option (1) remedy such Defect; or (2) in the event the aforementioned remedy is not possible by using reasonable commercial endeavours, withdraw the license at issue and refund the license fees paid by the Customer with respect to the defected Service for the license period when such Service was inoperative, but anyway not more than the amount indicated in Clause 10.3 below. This would be an exclusive remedy of the Customer.
10.2 Notwithstanding the warranty provisions set forth in Section 10.1 above, all of LeadsGate’ obligations with respect to such warranties shall be contingent on Customer's use of the Platform and Services in accordance with this Agreement and in accordance with LeadsGate’ instructions as provided by LeadsGate, as such instructions may be amended, supplemented, or modified by LeadsGate from time to time. LeadsGate shall have no warranty obligations with respect to any failures of the Platform and Services which are the result of accident, abuse, misapplication, extreme power surge or extreme electromagnetic field.
10.3 CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH LEADSGATE IS CHARGING PURSUANT TO THIS AGREEMENT DOES NOT INCLUDE ANY CONSIDERATION FOR THE ASSUMPTION BY LEADSGATE OF THE RISK OF THE CUSTOMER’S OR ANY THIRD PARTY’S INDIRECT DAMAGES WHICH MAY ARISE IN CONNECTION WITH THE CUSTOMER’S USE, SUBLICENSING OR RESALE OF THE PLATFORM AND SERVICES. ACCORDINGLY, CUSTOMER HEREBY AGREES, THAT TO THE EXTENT PERMITTED BY LAW LEADSGATE SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT LOSS, OR DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFIT, LOST SAVINGS OR LOSS OF REVENUES ARISING FROM THE USE OF THE PRODUCTS, EVEN IF LEADSGATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE. ANYWAY IT IS AGREED THAT IN EACH CASE OF CLAIM THE TOTAL AND MAXIMUM LIABILITY OF LEADSGATE SHALL IN NO EVENT EXCEED THE LOWEST OF PAYMENTS RECEIVED OR DUE FROM CUSTOMER UNDER THIS AGREEMENT DURING A THREE MONTH PERIOD PRECEEDING THE DATE WHEN LEADSGATE WAS NOTIFIED OF SUCH CLAIM.
10.4. LeadsGate is not responsible for the privacy policies or practices of any non-LeadsGate web sites that Customer uses or that Customer’s web-sites may be linked to.
10.5 Customer and LeadsGate are independent contractors. Nothing in this Agreement or in the conduct of the parties shall be interpreted or construed as creating or establishing any relationship between the parties other than that of independent contractors. Without limitation of the foregoing, the parties expressly provide that neither party shall be deemed an agent nor employee of the other party, nor the parties shall not be deemed partners or joint ventures. LeadsGate does not operate, control, own or monitor Customer’s business and business practices, Customer Materials transmitted via the Platform and/or distributed or collected outside the Platform. IN NO CASE LEADSGATE SHALL BE RESPONSIBLE FOR CUSTOMER’S BUSINESS WITH ANY THIRD PARTIES.
11. Data protection
12.1 The Provider will keep confidential and not disclose the Customer Confidential Information to any person except is required by authorised authorities or governmental officials.
12.2 In the course of performing its rights pursuant to this Agreement, Customer will be furnished with, receive, and otherwise have access to information concerning LeadsGate or proprietary information belonging to LeadsGate, which information LeadsGate considers to be confidential. For the purposes of this Agreement, “Confidential Information” shall mean: all information relating to LeadsGate’ business, including, without limitation, financial, marketing, and customer information, and any other information that would be provided and kept as a trade secret during the lifetime of this Agreement and for a period of five (5) years following its termination or expiration; the source code from which the Platform is derived is highly confidential and constitutes the trade secret of LeadsGate; and any documents or other media bearing a notice designating such materials to contain confidential or proprietary information. All Confidential Information shall be the property of LeadsGate. Customer shall: (I) hold all Confidential Information in strict confidence and refrain from disclosing Confidential Information to third parties, except as expressly authorized by this Agreement; (II) use Confidential Information solely and exclusively for the purposes of fulfilling its obligations under this Agreement, and only as expressly authorized by this Agreement; and (III) accord Confidential Information at least the same level of protection against unauthorized use or disclosure that Customer customarily accords to its own confidential, proprietary, or trade secret information of a like nature, but in no event less than a reasonable level of protection. Upon termination of this Agreement for any reason, or upon LeadsGate’ request, Customer shall either return to LeadsGate or destroy, at LeadsGate’ sole option, all Confidential Information and shall certify in writing to LeadsGate that all Confidential Information has been either returned or destroyed.
13.1 Customer may at any time terminate this Agreement immediately by giving written notice to LeadsGate.
13.2 We reserve the right to terminate this Agreement by removing or blocking Your respective account in the Platform at any time and for any reason so long as permitted by law. Accordingly, We may, but have no obligation to, remove Customers’ accounts We determine, which, in our sole discretion, are exploited to process, collect, sell or distribute unlawful, threatening, inappropriate or otherwise objectionable data (including traffic). In the event of termination, You will lose all data related to Your account. An account terminated by LeadsGate will not be backed-up for any reason and will be immediately terminated from Ledasgate’s servers. No losses, compensations or refund shall be payable to the Customer as a result of termination of this Agreement or removing of Your account in the Platform by LeadsGate.
14. Effects of termination
14.1 Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 8 - 12.
15.1 All administrative documentation may be sent via electronic communications (as well as via the Internet). Documents sent by electronic communications (including via the Internet and via Platform panel that supports Customer’s accounts) shall be treated legally equal to documents made in writing, sent and signed by authorized representatives of the parties, and shall be considered as done in writing and shall be legally effective for the parties.
16. Dispute Resolution
16.1 This Agreement is governed by the substantive and procedural English law (with no regard to conflict of law principles) and You and LeadsGate agree to submit to the exclusive jurisdiction of, and venue in, the courts in the country of LeadsGate incorporation in any dispute arising out of or relating to this Agreement. For the avoidance of any doubt, the Uniform Computer Information Transactions Act does not apply to this Agreement.
17.1 LeadsGate is authorized to assign its rights under this Agreement without changes of contractual contents in its totality to any subsidiary/affiliate with 30 calendar days’ prior notice to Customer.
17.2 LeadsGate may audit Your use of the Platform and Services (e.g., through use of software tools) to assess whether Your use of the Platform Services is in accordance with the terms of this Agreement. You agree to cooperate with LeadsGate audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations.
17.3 You agree to provide LeadsGate with all information, access and full good faith cooperation reasonably necessary to enable LeadsGate to provide the Services to You.
17.4 If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.