Master Subscription Agreement

This Rev Master Subscription Agreement (this “Agreement”) governs the delivery, access and use of LeadCrunch, Inc. (dba Rev) (“Company”) hosted software products (“Products”), Company-provided business data, including, if applicable, market qualified leads, contact data, and market insights (collectively, “Business Data”) and Company-provided professional services delivered to or accessible by authorized users of the Products (“Customer”).. The terms of this Agreement are incorporated into order forms (online or otherwise) entered into by Company and Customer that identify the Products, Business Data and other services to be accessed by and delivered to Customer, the amounts to be paid for such products, data and service, and other information applicable to the purchase (“Order Form”). References to an “Order Form” are to such form incorporating the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of an Order Form, the terms of such Order Form will prevail to the extent of such conflict.

 

  1. DEFINITIONS

 

“Customer Data” means electronic files, content, data and other information uploaded by Customer to or through the Product.

 

“Fees” means the subscription fees, use fees, overage fees and any other fees to be paid by Customer for access to the Product, Business Data, and other services.

 

“Subscription Term” means the period of time during which the Company permits Customer to access the Product identified in an Order Form.

 

  1. USE OF THE PRODUCT

 

2.1 Access and Use. Subject to any obligations or limitations stated in the applicable Order Form, Company grants to Customer a limited, non-exclusive, non-transferrable, non-sublicensable right during the Subscription Term to access and use the Product listed in an Order Form.

 

2.2 Account Registration. Company may require Customer to create an administrator’s account and user accounts, including a user name and password or other login credentials (“Login Credentials”). Customer may authorize only its employees and agents to use the Product (each, a “User”) in accordance with the terms of an Order Form and only for the benefit of Customer. Customer and Users are responsible for maintaining the confidentiality and security of the Login Credentials. Customer is responsible for all acts and omissions of each person that Customer permits to use the Product, including any fees attributable to use of the Product by any such person.

 

2.3 API.  The Product may be made available via application programming interface (“API”). Prior to access, Customer must register and receive an API key and other credentials. Customer must provide complete and accurate information as a part of such registration. Customer may use API to access the Products only as permitted herein and in accordance with applicable product documentation. Customer agrees to keep its API key and credentials confidential and to not share them with any unauthorized third-party. Customer will notify Company immediately in the event that it loses its API key or learns that it has been used by an unauthorized person or in an unauthorized manner. Company may, but is not obligated to, release subsequent updated versions of its API and to require Customer to obtain and use the most recent version. Company may remove and cease supporting previous versions of the API.

 

2.5  Documentation.   Company owns the Product user documentation (“Documentation”) and all derivative works thereof made by any party.  Company grants Customer a non-exclusive, worldwide limited license to use and make a reasonable number of copies of the Documentation solely for internal business purposes in connection with use of the Product during the Subscription Term.

 

  1. PROVISION OF BUSINESS DATA

 

3.1 MQL Generation and Validation. Company will deliver to Customer the Market Qualified Leads (“MQL”), contact data (“Contacts”) and other Business Data in the amounts purchased under an Order Form and accordance with the specifications and requirements stated in such Order Form. MQLs will be generated using the Company’s proprietary targeting system. Unless otherwise stated in an Order Form, an MQL is a record with a name, job title, company name, company business address, a valid phone number and email address.   Any number of MQLs exceeding the amount on the Order Form will be charged an overage fee, as specified on the order form. 

  

3.2 Campaigns.  Unless otherwise stated in an Order Form, each MQL generation campaign will launch only after Customer’s explicit copy approval. Nonetheless, Company reserves the right to make ongoing copy changes to optimize audience response without seeking prior approval from Customer.

 

3.3 Grant of Rights. Customer hereby grants to Company and its affiliates and service providers a non-exclusive, royalty-free, worldwide license to use Customer’s name, trademark, service mark, and logo for purposes of fulfilling the requirements of each Order Form. Company may also use Customer’s name and logo, in perpetuity, to identify Customer as a customer of Company in general listings of customers that Company may make available on its website or in promotional and marketing materials.

 

  1. RESTRICTIONS

 

Except as may be otherwise set forth in an Order Form, Customer will only access the Product for its internal business purposes and will not: 

 

  1. access or use the Product or Business Data except as permitted by applicable law and the terms of this Agreement; 
  2. decompile, disassemble, or reverse engineer any software or technology underlying the Product, except to the extent such restriction is prohibited by law; 
  3. host, sell, resell, rent, publish or lease the Product or Business Data, or any portion thereof or use the Product for time sharing purposes; 
  4. remove any copyright or proprietary notices contained in the Product or Business Data or place any third party’s trademarks on the Product or Business Data or otherwise imply that the Product or Business Data was developed or owned by, or proprietary to, Customer or any other third party; 
  5. obtain or attempt to obtain the Product or Business Data by any means or device with intent to avoid paying Fees; 
  6. enable access to the Product or Business Data by any third party other than as set forth herein or upon the prior written consent of Company; 
  7. use the Product to access, alter or destroy any information of another party by any malicious means or device; 
  8. use the Product to introduce a virus, worm, Trojan horse, or other harmful software code or similar files that may damage the operation of another party’s computer, property or information; 
  9. use the Product intending to damage, disable, overburden, or impair any server or network or interfere with any other party’s use and enjoyment of the Product; 
  10. obtain or attempt to obtain any materials or information through any means not intentionally made available through the Product; 
  11. use the Product or Business Data to defraud, defame, abuse, harass, stalk, threaten or infringe the rights of privacy, data protection, or intellectual property (including copyright) of others or otherwise violate any applicable law; 
  12. circumvent or modify any security technologies included as part of the Product; 
  13. perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan (including without limitation by use of any tool designed to automatically emulate the actions of a human user in connection with such testing) on the Product; 
  14. access or use the Product or Business Data in order to build or operate a product or service that competes with Company or the Product; or 
  15. attempt or permit any third party to do any of the foregoing. Company may suspend usage of the Product by any person, without notice, pending any investigation of misuse.

 

  1. CUSTOMER DATA

 

Subject to the terms of this Agreement, Customer hereby grants to Company a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit and create derivative works of the Customer Data, in each case for purposes of providing the Product and Business Data and other services to Customer and otherwise performing Company’s obligations under an Order Form. Customer represents and warrants that it has the rights and licenses necessary to grant the rights in this Section and to otherwise provide Customer Data to Company in connection with use of the Product and that the receipt and use of Customer Data by Company in accordance with this Agreement will not violate any intellectual property rights of third parties, confidential relationships, contractual obligations, or rights of any party under applicable law. Company will maintain reasonable administrative, physical, and technical safeguards designed for the prevention of unpermitted access to Customer Data. Company does not guarantee that these safeguards will be effective against misappropriation of data. Customer will maintain an adequate backup of all Customer Data. Company is not responsible for any failure to store or backup any Customer Data. If Customer integrates, or directs Company to integrate Customer’s Product account with any third-party service (e.g., another Customer-managed software solution) Customer permits the third-party service provider to access or use Customer Data. Customer is solely responsible for the use of such third-party services and any data loss or other losses it may suffer as a result of using any such services. If Customer uses any third-party service in connection with the Products or Business Data or uses Products to link or direct online traffic to third-party websites, Customer must ensure that such use complies with the terms of use of those third-party services.

 

  1. PROFESSIONAL SERVICES; SERVICE PROVIDERS; FEEDBACK

 

Customer may purchase consulting or professional services as described in an Order Form or related statement of work. Company will provide such resources and utilize such Company employees and consultants as Company deems necessary to perform such services. Unless otherwise agreed in writing, Company will retain ownership of all work product arising from such consulting or professional services and grant Customer the right to copy, modify, distribute and fully exploit such work product only in connection with its use of the Product, Software and Business Data as permitted under this Agreement.  Company may rely upon trusted third-party service providers to source and provide the Products and Business Data.  At all times during and after the term of this Agreement Company will have the unrestricted right without payment of royalty or other fee to use or act upon any suggestions, ideas, enhancement requests, feedback and recommendations relating to the Product that are provided by Customer or its employees or agents.

 

  1. CONFIDENTIALITY

 

Each party may receive or obtain access to information and other property that is either owned or under the control of the other party.  Such information and property that is conspicuously marked “Confidential,” “Proprietary,” or the like or that the receiving party should reasonably understand as being confidential or proprietary will be the disclosing party’s “Confidential Information.” Customer Data is the Confidential Information of Customer. Notwithstanding the foregoing, Confidential Information does not include any information or property that the receiving party can reasonably demonstrate: (i) is generally available to the public, (ii) was in the rightful possession or known by the receiving party prior to receipt from the disclosing party, (iii) was rightfully disclosed to the receiving party by a third party, or (iv) was independently developed without use of any Confidential Information of the disclosing party. Each party will share the Confidential Information only with its employees and contractors who are under an obligation of confidentiality and who will in all cases use the other party’s Confidential Information only in connection with this Agreement. Each party will use the same degree of care that it uses with respect to its own Confidential Information (but in no event less than reasonable care) to maintain in confidence, except as permitted herein, any Confidential Information of the other party. Either party may disclose the other party’s Confidential Information to the extent required by law or valid order of a court or other governmental authority; provided that the responding party agrees to deliver reasonable notice to the other party and use commercially reasonable efforts to cooperate with such other party’s attempt to obtain a protective order.

 

  1. FEES

 

Customer will pay the Fees set forth in the Order Form. Customer must pay for the entire purchased Product subscription whether or not the Product is used. Unless otherwise agreed in an Order Form, payment obligations are non-cancelable and fees paid are non-refundable. Customer is responsible for and agrees to pay any taxes, duties, or the like that apply to the provision or use of the Product or Business Data (except for Company’s employment taxes and taxes based on Company’s net income). Company will invoice Customer in advance and otherwise in accordance with the applicable Order Form. Unless otherwise stated in an Order Form, invoiced charges will be paid no more than 30 days after invoice date.  Customer is responsible for maintaining complete and accurate billing and contact information with Company. Customer’s failure to pay any Fees when due is a material breach of this Agreement for which Company may provide notice of breach and terminate the Agreement in accordance with the termination provisions below. Customer will pay all reasonable costs of collection of overdue Fees, including reasonable attorneys’ fees.

 

  1. OWNERSHIP

 

9.1 Products. As between the parties, Company is the owner of the Products andDocumentation , including all features, functionalities, configurations, designs, templates, and other proprietary elements contained therein and all modifications, improvements, and derivative works thereof made by any party.  

9.2 Customer Data. Company does not claim any ownership rights in any Customer Data. Except as expressly stated in this Agreement, no right, title, or interest in the Customer Data is granted or transferred to any party. All rights not expressly granted are hereby reserved.

 

9.3 Statistical Data. Notwithstanding anything to the contrary in this Agreement or elsewhere, Company may monitor Customer’s use of the Product and Business Data and compile statistical and performance information. Company owns and retains all intellectual property rights in such statistical and performance information and may use such information for any purpose. Company may make such statistical and performance information publicly available in anonymized and aggregated manner and in a form that does not identify Customer or its employees or customers.

 

  1. WARRANTIES; DISCLAIMER

 

10.1 Authority and Compliance.  Each party represents and warrants that it has the full right and authority to enter into and perform its obligations under this Agreement. Each party will comply with all applicable laws, rules and regulations in providing and using the Product and Business Data (including those regarding privacy and email marketing).

 

10.2 Performance. Company warrants that the Product, when used in accordance with its Documentation and the applicable Order Form, will materially conform to the specifications set forth in the Product Documentation. Customer’s sole and exclusive remedy and Company’s entire liability for any breach of this warranty shall be as follows: Company will have 30 days after written notice to deliver a correction that resolves the nonconformity, including by reasonable workaround, or if such correction is not commercially feasible shall refund to Customer any prepaid fees paid under this Agreement in a prorated amount based on the remaining days in the subscription term, and this Agreement will terminate in accordance with its terms. The foregoing warranty does not apply to any Business Data and does not apply to any Product provided free of charge or on an evaluation or trial basis, all of which are, unless otherwise expressly agreed by Company, provided AS-IS and without warranty of any kind.

 

10.3 DISCLAIMER. EXCEPT AS WARRANTED ABOVE, THE PRODUCT AND BUSINESS DATA AND ALL RELATED SOFTWARE, DOCUMENTATION, AND ANCILLARY PROFESSIONAL OR CONSULTING SERVICES AND OTHER INFORMATION AND MATERIALS ARE PROVIDED AS-IS AND AS-AVAILABLE AND COMPANY AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS DISCLAIM AND MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE PRODUCT  AND ANY DELIVERABLES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER COMPANY OR ANY OTHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OR APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO THE CUSTOMER.

 

 

  1. INDEMNIFICATION

 

11.1 By Company. Company will defend against any suit or other proceeding (a “Claim”) brought against Customer or its directors, managers, or employees to the extent that it is based upon a third-party claim that the Product as provided by Company to Customer pursuant to this Agreement, infringes any copyright, patent, trademark, trade secret or other intellectual property right of such third-party and will pay any costs, damages and reasonable attorneys’ fees attributable to such Claim, including any award in final judgment against or paid in settlement by Customer. The indemnified party shall provide Company with prompt written notice of any indemnifiable Claim. Company shall have sole authority to defend or settle the Claim at the option of Company with counsel of Company’s choosing. If Company assumes control of the defense of such Claim, it shall permit Customer to participate in the suit in an advisory capacity at its own expense and Customer shall cooperate with Company.  Company’s indemnification obligations will not apply to any Product that has been (i) modified by any party other than Company or its agents after its delivery by Company; (ii) combined with hardware, software, products, services, content or materials not provided by Company where the Claim would not have occurred absent such combination; or (iii) superseded by an updated version that has been made available to the Customer (if use of that updated version would have avoided the Claim) or that Company has instructed Customer not to use. If Company becomes aware of a Claim alleging infringement, or Company reasonably believes such a Claim will occur, Company may, at its sole option: (a) obtain for Customer the right to continue use of the Product; (b) replace or modify the Product so that it is no longer infringing or contrary to law or right; or, (c) if neither (a) nor (b) is reasonably available to Company, terminate access to the Product in which case Company’s sole liability (in addition to the indemnification obligations set out in this Section) is to refund to Customer a prorated amount of any prepaid fees for the Product applicable to the remaining Subscription Term.

 

11.2 By Customer.  Customer will defend against any Claim brought against Company or its directors, managers, or employees to the extent that it is based upon a third-party claim (i) that the Customer Data infringes any copyright, patent, trademark, trade secret or other intellectual property right of such third party or (ii) arising from Customer’s breach of this Agreement or violation of law, rule or regulation  (including those regarding privacy and email marketing) or breach of any contractual obligation to a third party (including any third party marketing platform terms of use) and will pay any costs, damages and reasonable attorneys’ fees attributable to such Claim, including any award in final judgment against or paid in settlement by the indemnified party. The indemnified party shall provide Customer with prompt written notice of any indemnifiable Claim. Customer shall have sole authority to defend or settle the claim at the option of Customer with counsel of Customer’s choosing. If Customer assumes control the defense of such claim, it shall permit the indemnified party to participate in the suit in an advisory capacity at its own expense and Company shall cooperate with Customer.

 

  1. LIMITATION OF LIABILITY

 

Company and its affiliates, suppliers, licensors, and distributors and their officers, employees and directors will not be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if it has been advised of the possibility of such damages and for any cause whatsoever and regardless of the form of action, including actions brought by under statute) arising from or relating to this Agreement, the Product, Software, Business Data, or other services or deliverables of Company including any such damages resulting from: the use or the inability to use the Product, Software, or Business Data; the cost of procurement of substitute goods and services resulting from any failure of goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Product; unauthorized access to or alteration of transmissions or data; statements or conduct of any third party on the Product; termination or suspension of Customer’s account; or any other matter relating to the Product, Software or Business Data. 

 

THE AGGREGATE, TOTAL AND COMBINED LIABILITY OF COMPANY AND ITS AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS AND THEIR OFFICERS, EMPLOYEES AND DIRECTORS FOR ANY OBLIGATIONS OR DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE PRODUCT, OR RELATED DATA, SOFTWARE, DOCUMENTATION, INFORMATION OR MATERIALS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION) WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS CUSTOMER PAID TO COMPANY IN THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CREATING LIABILITY.

 

  1. TERM AND TERMINATION

 

This Agreement will remain in effect during the Subscription Term specified in an Order Form and any agreed upon renewals unless terminated sooner in accordance with this Agreement. Either party may terminate an Order Form by written notice to the other party in the event that the other party materially breaches the terms of the Order Form and does not cure such breach within 30 days after written notice thereof. In the event that either party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may terminate any Order Form immediately upon written notice. Upon termination, the rights and licenses granted to Customer will terminate immediately and, unless otherwise stated on an applicable Order Form, access to the Product will terminate. The following sections will survive termination or expiration of this Agreement or an Order Form: 7 (Confidentiality), but only with respect to Confidential Information disclosed during the Subscription Term; 8 (Fees); 10.3 (Disclaimer); 11 (Indemnification); 12 (Limitation of Liability) and 15 (General).

 

  1. MODIFICATION.

If the terms of this document are hosted by Company on a webpage, then Company may update or otherwise modify the terms of this document from time to time and will update the “last modified” date of this document.  If Customer accepts the terms of this document when executing or otherwise accepting the terms of an Order Form or other ordering document, then the version of this document that is hosted on the date of such execution or acceptance will govern such Order Form or ordering document. Upon renewal of a Subscription Term, the most current version of this Agreement posted on the Company website will apply.

 

  1. GENERAL

 

Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, provided that either party may assign the Agreement in its entirety upon notice but without the other party’s consent in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. In the event that a party assigns this Agreement to a direct competitor of the other party, the other party may terminate this Agreement and receive a pro rata refund of any pre-paid fees. Any assignment in violation of the foregoing will be null and void. Subject to the foregoing, each and all of the provisions hereof will be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns. This Agreement and all matters arising out of or relating to any Order Form will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the County of San Diego (if state court) or the Southern District of California (if federal court).  Company and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. Either party bring a claim for injunction or other emergency relief in any competent court. Each party hereby waives any right it has to a jury trial in deciding any dispute. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Except for the payment of fees hereunder, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, denial of service attacks, failure of a utility service or network, governmental acts or orders or restrictions or any other reason when failure to perform is beyond the reasonable control of the non-performing party. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.