RingLead Master Services Agreement
This MASTER SERVICES AGREEMENT (this “Agreement”) is entered into and effective as of the date below (the “Effective Date”), by and between RingLead, Inc., a Delaware corporation (“RingLead”, “We”, “Us” or “Our”) and the customer listed on the signature page below (“You” or “Your”).
- General. This Agreement governs each party’s rights and obligations, as well as Your access and use of Our websites and services, specifically those services listed on Schedule A (the “Services”). By using the Services, You are agreeing to the terms and conditions hereunder, including all schedules, exhibits and addendums (the “Terms”). If You are using the Services on behalf of an organization, it is agreeing to the Terms on behalf of such organization and representing that it has the authority to bind that organization to the Terms. Please read the Terms carefully before using the Services.
- Contract Term; Renewal Terms. The term for the Services will commence on the Effective Date and continue in accordance with Schedule A hereof. Unless otherwise specified, all subscriptions shall have a term of twelve (12) months and unless either party notifies the other party in writing not less than sixty (60) days prior to the expiration of the then-current term, the term shall be renewed for an additional twelve (12) month term on each anniversary date. Pricing during renewal terms shall be increased by up to 5% per year from Ringlead’s published list price for each sequential year at Our discretion.
- Fees and Payment Terms. Unless otherwise provided in writing by Us, You will pay all fees due according to the prices and terms listed in the Order Schedule attached hereto as Schedule A. Payment for all fees shall be due upon the Effective Date and payment shall be made in U.S. Dollars. Fees are based on the Services purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable. Fees are based on annual periods that commence on the Effective Date and end on the anniversary thereof. Fees for any additional Services purchased during the Contract Term will be prorated for the remaining time of the monthly, quarterly or yearly period in which they were purchased.
- Taxes.You shall pay all taxes, tariffs, bank fees, duties, levies, VATs or similar governmental assessments of any nature related to, or incurred under, this Agreement (including any sales, use, excise or value added taxes), exclusive of taxes based on or measured by Our net income.
- License Grant. The Services are owned by Us and are licensed, not sold, to You. You are granted a limited, non-transferable, non-exclusive license to use the Services for Your own internal business purposes only, subject to the Terms. You have no right to sublicense under this Agreement. All rights not expressly granted to You are retained and reserved by Us.
6.Use of the Services.
6.1 You are solely responsible for any and all activities that occur as a result of Your use of the Services, whether or not authorized by You. You are not permitted to directly or indirectly: (i) modify, reverse compile, reverse assemble, reverse engineer, or publish all or any portion of the Services, (ii) assign, sublicense, rent, lease, distribute, sell, transfer, reproduce, adapt or create derivative works of the Services, (iii) use any means to discover the source code of the Services or to discover the trade secrets in the Services, or (iv) use any of the Services for an unlawful purpose or in an illegal or offensive manner. You shall not use the Services for the benefit of a third party, or remove any proprietary labels or notices on or incorporated into the software or supporting documentation.
6.2 You acknowledge that We are not liable for any interruptions, delays and other problems inherent in the use of the Internet and electronic communications.
6.3 You and any Users cannot exceed the number of Users for which You have contracted for. You may reassign licenses to new Users only for the purpose of replacing terminated Users.
6.4 We, in Our sole discretion, may terminate Your password, account, or use of the Services if You breach or otherwise fails to comply with this Agreement. We may also terminate a free account at any time within Our sole discretion.
6.5 We shall provide the Services to You in accordance with the Terms and all applicable laws, rules and regulations. We shall use commercially reasonable safeguards to protect the security, confidentiality and integrity of information that you provide through the use of the Services without limiting Our right to review or utilize such information for valid business purposes. We reserve the right but are not obligated to improve, enhance or modify the Services; however, We shall notify you of any significant changes that may adversely affect your use of the Services.
- Ownership. The Services, including the “look and feel” (e.g., text, graphics, images, logos), content and other material, are protected under copyright, trademark and other laws. You acknowledge and agree that We own all right, title and interest, including all related Intellectual Property Rights, in and to Our Technology and the Services. You agree not to take any action(s) inconsistent with Our ownership interests. Any and all suggestions, ideas, enhancement requests, feedback, recommendations or other similar information provided by You (the “Suggestions”), as well as all improvements, updates, modifications or enhancements, whether made, created or developed by Us or otherwise relating to the Services (the “Revisions”), are and will remain Our property. No Suggestions or Revisions provided by You shall be construed to grant You any rights or licenses in and to Our Intellectual Property Rights or such Suggestions and Revisions. All Suggestions and Revisions shall become Our sole and exclusive property and We reserve the right to use the Suggestions and Revisions in or for any manner or purpose whatsoever.
8.Intellectual Property Infringement. If We or any of Our customers are faced with a claim that the Services infringe on the Intellectual Property Rights of a third party, and using commercially reasonable standards, We are unable to obtain the right to use the infringing element on commercially reasonable terms or modify the Services such that they do not infringe on such third party’s rights, then We may terminate the Services on reasonable advance notice to You, not to be less than ninety (90) days. You acknowledge that You are only entitled to a refund of any amounts paid to Us by You for Services not provided as of the date of such termination.
- Confidential Information.Subject to the terms hereof, any Confidential Information disclosed by either party hereto (the “Disclosing Party”) to the other party (the “Receiving Party”) shall be held in confidence and shall not, during the term of this Agreement, or for a period of two (2) years following the termination or expiration of this Agreement, be used for any purpose, whatsoever, other than in accordance with this Agreement. Each party’s obligations to keep confidential the other party’s Confidential Information shall not apply to any information which (i) is or becomes a part of the public domain through no act or omission by the Receiving Party, (ii) was previously known to the Receiving Party free of any obligation to keep it confidential; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (v) was (i) compelled pursuant to a legal proceeding, or (ii) otherwise required by law. If the Receiving Party is compelled to disclose any information by judicial or administrative process or by other requirements of law, the Receiving Party shall promptly notify the other party in writing and shall disclose only that portion of such information which the Receiving Party is legally required to be disclosed; provided, that the Receiving Party shall use commercially reasonable efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
10.Representations and Warranties.
10.1In General. We warrant that (i) we have the legal right and ability to enter into this Agreement, (ii) the Services shall be performed in a manner consistent with commercially reasonable industry standards and (iii) We are not aware of any jurisdiction in which the harvesting of publicly available Internet data using the methods implemented by the Services is prohibited, including, but not limited to data mining, for which You are solely responsible for ensuring that Your use of the Services complies with any and all applicable laws. You warrant that (i) You have the legal right and ability to enter into this Agreement, (ii) You have all necessary rights, licenses, consents and permissions to use Your Data with the Services, (iii) Your billing information is correct, (iv) You are not a competitor of Us, or someone acting on behalf of a competitor and (v) Your use of the Services will not violate or breach any applicable laws, regulations or agreements or unreasonably interfere with Our other customers’ use of Our services. You further warrant that you understand that the all laws applicable to this Agreement, including those governing data and privacy, may change on a regular basis and vary by jurisdiction, and You are solely responsible for compliance with any and all applicable laws and regulations.
10.2 Exclusions. Any warranty excludes non-performance issues that result from third-party hardware or firmware malfunction or defect, software not developed by Us, incorrect data provided by or incorrect procedures used by You or a third party, or defects which are outside the reasonable control of Us. You will reimburse Us for Our reasonable time and expenses for any Services provided at Your request to remedy excluded non-performance issues. Any warranty provided for herein and any performance guarantees set forth herein shall be null and void if You fail to follow the Terms, or otherwise breach this Agreement in any respect.
10.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, YOU ACKNOWLEDGE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. WE MAKE NO WARRANTY OF ANY KIND. WE DISCLAIM AND EXCLUDE ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, GOOD TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE, VIRUS-FREE OR FREE FROM ERROR OR DEFECT. SOME OR ALL OF THE ABOVE EXCLUSIONS OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU SINCE SOME JURISDICTIONS DO NOT ALLOW THEM TO BE EXCLUDED.
11.Limitations of Liability. EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 12 BELOW, IN NO EVENT SHAL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WITHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (1) IN THE AGREGATE, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, (2) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DESCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12.Indemnification. You shall defend Us against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party (i) arising out of Your breach of Section 9 (Confidentiality), or (ii) alleging that the use of the services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any Claim; provided that We (a) promptly give You written notice of the Claim, (b) gives You sole control of the defense and settlement of the Claim (provided that You may not settle or defend any Claim unless it unconditionally releases Us of all liability), and (c) provides to You all reasonable assistance, at Your expense.
We agree to defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against Us by a third party alleging that the Our services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify You for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, You in connection with any Claim; provided that You (a) promptly give Us written notice of the Claim, (b) gives Us sole control of the defense and settlement of the Claim (provided that We may not settle or defend any claim unless its unconditionally releases You of all liability), and (c) provides to Us all reasonable assistance, at Our cost.
This Mutual Indemnification section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
13.1 Termination for Cause. This Agreement shall terminate upon any breach of the Terms by You, in accordance with the Terms.
13.2 Effect of Termination. Upon termination, (i) you shall cease any and all use of the Services and You shall relinquish to Us or destroy any and all parts of the Services in Your control, and (ii) all rights, licenses, consents and authorizations granted by Us to You will immediately terminate. The termination of this Agreement shall not limit Our rights or remedies at law or in equity. The following provisions will survive any expiration or termination of the Agreement: Sections 7, 11, 12, 13 14, 15, 19, 20 and 21.
13.3 Data Usage. Upon termination (i) you shall retain all data in your CRM. We shall not require you to destroy or remove any of the data that (ii) We have enriched.
14.Suspension of Services. We may suspend delivery of the Services, without liability, if: (i) You fail to pay any amounts due hereunder to Us, and nonpayment continues for more than thirty (30) days from when notice is given to the You by Us, (ii) We reasonably believe that the Services are being used in violation of this Agreement, (iii) You do not cooperate with Our reasonable investigation of any suspected violation of this Agreement, (iv) there is an attack on Your server by a third party, Your server is accessed or manipulated by a third party without Your consent, or there is another event for which We reasonably believe that the suspension of Services is necessary to protect Our network or customers, or (v) required by law. We shall use commercially reasonable efforts to give You reasonable notice of a suspension of Services, unless immediate suspension is necessary to protect Us or Our customers from imminent significant operational or security risk.
15.Service Level Agreement (the “SLA”).We warrant 99.9% uptime for software service applications and components specific to and wholly controlled by Us, excluding scheduled maintenance or upgrade time. We make no warranty of the platforms that Our services may depend upon (such as Salesforce or Microsoft Dynamics). For any period that the SLA is not met, We will provide a pro-rated refund to You for the portion of the service package affected, provided that You promptly notify Us in writing and We verify the service outage. From time to time, We may upgrade the Services infrastructure, which may require marginal downtime of the Services. We will notify Your registered administrative user by email, a minimum of seven (7) days in advance of scheduled maintenance. Support parameters (Eastern Standard Time) specific to the Services covered in this Agreement are as follows:
- Telephone support: 8:00 A.M. to 5:00 P.M., Monday – Friday EST;
- Calls received outside of office hours will be forwarded to a mobile phone and best efforts will be made to respond to the call. Note that there will be a backup answer phone service as well;
- Email support: Monitored 8:00 A.M. to 5:00 P.M. Monday – Friday EST; and
- Emails received outside of office hours will be collected; however, no action can be guaranteed until the next working day.
- Service Requests. In support of the Services outlined in this Agreement, We will respond to service related incidents and/or requests submitted by You within the following time frames:
- 0-8 hours (during business hours) for issues classified by Us as High priority;
- Within 48 hours for issues classified by Us as Medium priority; and
- Within 5 working days for issues classified by Us as Low priority.
16.Export Compliance. You represent and warrant that You are not a person to whom We are legally prohibited to provide the Services. You agree that You shall not export or re-export, directly or indirectly, the Services and/or other information or materials provided by Us hereunder, to any country for which an export license or other governmental approval is required without first obtaining such license or approval. You are responsible for and hereby agree to comply at Your sole expense, with all applicable United States export laws and regulations.
17.Modification of Agreement.We may modify the Terms of this Agreement upon notice to You at any time. You will be provided notice of any such modification by either email or such changes being published on http://ringlead.com. No other act, document, usage or custom will be deemed to modify or amend these Terms.
18.Notices. All routine communications regarding the Services shall be made through Your email or physical address as set forth in Schedule A hereof. All other communications, such as legal disputes, shall be delivered in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by facsimile (with written or electronic confirmation of transmission), (c) one Business Day following the day sent by overnight courier (with written confirmation of receipt) or (d) when delivered by email (with written or electronic confirmation of receipt), in each case at the following addresses and facsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this provision): (i) if to Us: RingLead, Inc., 223 Wall Street, Suite 144, Huntington, NY 11743, Email: email@example.com; and (ii) if to You: to the email address or physical address as set forth in Schedule A hereof.
19.Miscellaneous. This Agreement, including any and all exhibits and addenda hereto, comprise the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings, proposals or arrangements relating to the subject matter of this Agreement. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between a party and the other party or the other party’s employees or agents, for any purpose whatsoever. There are no third-party beneficiaries to this Agreement. The waiver of a breach of any term hereof shall in no way be construed as a future waiver of that or any other term or breach. Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is due to any cause beyond the reasonable control of such party, including, but not limited to, acts of God, war, terrorist activities, strikes, fire, or changes in laws or governmental regulations. This Agreement is binding upon the parties’ respective successors and assigns. The Terms and the licenses granted hereunder may be assigned by Us at any time. You shall not transfer or assign this Agreement without Our prior written consent. For purposes hereof, a transfer or assignment shall include any change in control of You. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement, following Your breach of Section 3 hereof. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without giving effect to the conflict of law provisions thereof. Each of the parties hereto irrevocably: (i) submits to the personal jurisdiction of the courts sitting in Suffolk County, New York in the event any dispute arises out of this Agreement or any of the transactions contemplated by this Agreement; (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court; (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such courts sitting in Suffolk County, New York and (iv) agrees that all service of process relating to any dispute hereunder may be made pursuant to the terms of Section 19 hereof. The parties hereto waive trial by jury in any action, suit, proceeding, or counterclaim brought by either of them against the other in any matter arising out of or in any way connected with this Agreement. The titles, captions, and headings contained in this Agreement are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement. If any provision hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement is the product of negotiations between the parties hereto and the parties hereto expressly acknowledge and agree that the Agreement shall not be deemed prepared or drafted by one party or another, or its attorneys. You and Us agree that any rules of construction relating to interpretation against the drafter of an agreement shall not apply to this Agreement, and are expressly waived. If Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government’s rights in Service and accompanying documentation will be only as set forth in this Agreement. This is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions).