This Master Subscription Agreement (“Agreement”) is entered into by and between LeadCrunch, Inc. (dba Rev) (“Company”), a Delaware corporation, and the customer identified in the Order Form referencing this Agreement (“Customer”). Company and Customer may be referred to herein individually as a “Party” or collectively as the “Parties”.
1. DEFINITIONS
“Customer Data” means electronic files, data and other information entered by Customer to the Sales Development Platform.
“Order Form” means Company’s written order form executed by both Parties referencing the Agreement for the purchase of a subscription to the Service and/or other product offered by Company.
“Sales Development Platform” means Company’s proprietary software platform which enables users to build sales pipelines, using the creation of an Artificial Intelligence Customer Profile (“aiCP”).
“Service” means Company’s Sales Development Platform and all related services provided through the Sales Development Platform as identified in the applicable Order Form.
“Subscription Term” means the period of time during which the Company permits Customer to access and use the Service identified in an Order Form.
“User” means those Customer’s employees and agents authorized by Customer to use the Service in accordance with the terms of an Order Form.
2. THE SALES DEVELOPMENT PLATFORM SERVICE
2.1 ) Service. Subject to any obligations or limitations stated in the applicable Order Form and in this Agreement, Company hereby grants to Customer, during the Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service, solely for Customer’s internal business use.
2.2 ) Restrictions. The rights granted to Customer in this Agreement are subject to the following restrictions: (i) Customer shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (ii) Customer shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (iii) Customer shall not access the Service in order to build a similar or competitive service; and (iv) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Service shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Service content must be retained on all copies thereof. Except as provided herein, Customer agrees not to permit any third party access to the Service, nor any materials generated by Customer regarding the Service without Company’s advance written approval. Customer agrees that the following constitute Company’s confidential information (a) all quantitative and qualitative information related to the methodology, operational characteristics, performance, design, algorithms, and architecture of the Service; and (b) the pricing terms of the Service.
3. ACCEPTABLE USE POLICY
3.1 ) Company Responsibilities. Company shall: (i) provide its basic support for the Service to Customer at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Service only in accordance with applicable laws and government regulations.
3.2 ) Company’s Use of Customer Data. Company shall maintain commercially reasonable administrative, physical, and technical safeguards consistent with industry standards for protection of the security, confidentiality and integrity of Company Data.
COMPANY USES A VARIETY OF INDUSTRY-STANDARD SECURITY TECHNOLOGIES AND PROCEDURES TO PROTECT CUSTOMER DATA FROM UNAUTHORIZED ACCESS, USE, OR DISCLOSURE. NOTWTHSTANDING THESE MEASURES, CUSTOMER SHOULD BE AWARE THAT SECURITY RISKS CANNOT BE FULLY ELIMINATED.
3.3 ) Customer’s Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Company promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with the applicable laws and government regulations. Customer shall not (a) make the Service available to anyone other than its Users, (b) sell, resell, rent, sublicense, or lease the Service, or make the Service available as a service bureau, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or their related systems or networks. “Malicious Code” means viruses, worms, ransomware, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
4. FEES AND PAYMENT TERMS
4.1 ) Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or on the Order Form: (i) fees are based on services or subscriptions purchased and not actual usage; and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
4.2 ) Invoicing and Payment. Customer shall pay Company all amounts due within thirty (30) days after the date of the invoice.
4.3 ) Suspension of Service and Acceleration. If any amount owed by Customer under this or any other agreement for Company’s services is thirty (30) or more days overdue, Company may, without limiting other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Service until such amounts are paid in full.
4.4 ) Payment Disputes. Company shall not exercise its rights 4.3 (Suspension of Service and Acceleration) for a period of at least thirty (30) days if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.5 ) Taxes. Unless otherwise stated, Company’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. For clarity, Company is solely responsible for taxes assessable against Company based on our income, property and employees.
4.6 ) Currency. All payments must be made in U.S. Dollars.
5. PROPRIETARY RIGHTS
5.1 ) Service. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 ) Customer Data. Company does not claim ownership rights in any Customer Data. Except for what is expressly stated below, there is no right, title, or interest in the Customer Data granted or transferred to any Party. 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 solely for purposes of providing the Service to Customer.
5.3 ) Statistical Data. Company’s use of Customer Data will be limited to the provision of the Service to Customer as expressly set for in Section 5.2 and for no other purpose. However, Company shall be entitled to monitor Customer’s use of the Service, compile statistical and performance information related to the provision and operation of the Service, and use such information for the purpose of improving the Service and other business development purposes. Company retains all intellectual property rights in such statistical and performance information.
5.4 ) Grant of Rights. Customer hereby grants to Company and its affiliates and service providers a non-exclusive, royalty-free, worldwide license to identify as a customer for branding, promotional and marketing purposes.
6. CONFIDENTIALITY
6.1 ) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Confidential Information shall include Customer Data; Company Confidential Information shall include the source code, architecture and logic of the Service; and Confidential Information of each Party shall include the terms and conditions of all Order Forms, as well as business and marketing plans, technology and technical information, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (i) is or becomes known to the general public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
6.2 ) Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose other than as is necessary to perform its obligations or exercise its rights under this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.3 ) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES; DISCLAIMER
7.1 ) Company Warranties. Company warrants that (i) it has validly entered into this Agreement and has the legal power to do so, (ii) the Service shall perform materially in accordance with the Order Form, and (iii) the functionality of the Service will not be materially decreased during a Subscription Term. For any breach of a warranty above, Customer’s exclusive remedy shall be as provided in Section 10.2 (Termination for Cause) below.
7.2 ) Customer Warranties. Customer represents and warrants that (i) it has validly entered into this Agreement and has the legal power to do so, (ii) the execution of this Agreement does not violate any other agreement to which Customer is bound, and (iii) Customer will comply with all applicable laws, rules, and regulations in using the Service (including those regarding privacy and email marketing).
7.3 ) Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8. INDEMNIFICATION
8.1 ) By Company. Company will defend against any suit or other proceeding (“Claim”) brought against Customer or its directors, managers, or employees to the extent that it is based upon a third-party claim that the Service as provided by Company to Customer pursuant to this Agreement, infringes any copyright, patent, trademark, trade secret or another 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. Customer 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 Service that has been (i) modified by any party other than Company or its agents after its delivery by Company; (ii) combined with 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 the 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 the use of the Service; (b) replace or modify the Service 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 Service 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 Service applicable to the remaining Subscription Term.
8.2 ) By Customer. Customer will defend against any Claim brought against Company or its affiliates, their respective 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 another intellectual property right of such third-party or (ii) arising from Customer’s breach of this Agreement, applicable Order Form, or violation of law, rule or regulation 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. Company 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 of 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.
9. LIMITATION OF LIABILITY
9.1 ) Limitation of Liability. COMPANY’S LIABILITY IN THE AGGREGATE UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
9.2 ) Exclusion of Consequential and Related Damages. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1 ) Term. This Agreement will come into force when Company’s Service is made available to Customer and will remain in effect during the Subscription Term and any agreed-upon renewals, which are specified in the Order Forms, unless terminated sooner in accordance with this Agreement.
10.2 ) Termination for Cause. A Party may terminate this Agreement or any Order Form for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.
10.3 ) Effects of Termination. Upon termination of this Agreement, Customer will immediately cease any further use of the Service, and all rights and licenses granted by Company to Customer herein will immediately terminate. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Company for the full subscription period then in effect.
10.4 ) Surviving Provisions. Section 4 (Fees and Payment Terms), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Indemnity), 9 (Limitation of Liability), 10.4 (Effect of Termination), and 11 (General) shall survive any termination or expiration of this Agreement.
11. GENERAL
11.1. ) Assignment. 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. If 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 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.
11.2 ) Governing Law. 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 brings 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.
11.3 ) Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving Party.
11.4 ) Independent Contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties.
11.5 ) Agreement Modifications. If the terms of this Agreement 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 the amended 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.
11.6 ) Entire Agreement. This Agreement, together with the NDA and any other terms referenced in the Order Form, 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.
11.7 ) Notices. Any required notice shall be given in writing to contracts@getrev.ai.