Last Updated: August 15, 2019
These General Terms and the Service Order(s) (together, the Agreement) form a contract between you and LEADx. This Agreement governs your subscription to, and use of, LEADx’s website and/or other related applications or services including but not limited to translation, analytics and individual and organizational level feedback (together, the Services).
As the Customer, you agree to this Agreement by signing a document that references this Agreement (and you expressly agree and consent to use electronic signatures to execute this Agreement or associated documents), or by using the Services, whichever occurs first. If you are an organization, the individual who agrees to this Agreement on your behalf must have the authority to bind you to this Agreement, and both you and such individual represent that to be the case.
1 SERVICES
1.1 LEADx SERVICES
During the Term, we will provide you with access to, and use of, the Services ordered by you as described in the Service Order. You may order additional services at any time during the Term by contacting our Customer Success team. We will invoice you for any additional services you order after the start of the Term at the time those Services are ordered.
1.2 CUSTOMER SUPPORT
LEADx accepts email to support@leadx.org and in-app support questions can be submitted through the help widget. We respond to email and in-app support questions within one business day; in practice, our responses are generally within minutes or hours. Issues resulting from your use of API's may be outside the scope of support. We will only provide support for integrations which are listed in the Service Order form.
1.3 CHANGES TO SERVICES
We continually change and improve our Services. LEADx may alter the Services at any time without prior notice. We will endeavor to provide you with prior notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. If we do make a change that results in a material decrease in functionality, you may terminate your Subscription under clause 8.4.
1.4 SUSPENSION OF SERVICES
We may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance or in the event of a security emergency). If LEADx limits or suspends the Services, we will endeavor to give you reasonable advance notice so that you can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for us to give you advance notice. We will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.
We may suspend your access to or use of the Services following thirty (30) days’ written notice if Customer is in material breach of this Agreement or any Service Order (including but not limited to Customer’s failure to pay LEADx the fees).
1.4 THIRD-PARTY SERVICES
If you use any third-party service with the Services (for example, Degreed, Sum Total, or Workday integrations), you acknowledge that third party service may access or use the Customer Data. LEADx will not be responsible for any act or omission of the third party, including such third party’s use of Customer Data. LEADx does not warrant or support any such third party service, and you should contact that third party for any issues arising from your use of the third party service.
2 Fees and Payments
2.1 FEES FOR SERVICES
LEADx Services are billed on a subscription basis (Subscription) and you will be billed in advance on a recurring, periodic basis (called a Billing Cycle). The Billing Cycle for your Subscription is outlined in the Service Order. You agree to pay LEADx any fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for those Services in the Service Order.
2.2 PRICE CHANGES AND USER INCREASES
LEADx may change its fees for Services at any time. Except where you exceed the User limit indicated in a Service Order, any changes to fees will apply from the start of your next Subscription Term.
2.3 PAYMENT METHODS
You authorize us to charge for fees using the payment method indicated in the Service Order. Unless otherwise agreed and noted in the service order, payments for invoices are due 30 days after the invoice date. If you elect to pay by credit card, debit card, or any other billing method that supports automatic recurring payments, we will initially attempt to charge you using that billing method when payment is due, and payments will be considered overdue if payment is not received within 30 days of that due date. If your card cannot be charged, LEADx will notify you and you will need to update your payment information. In the event you do not update your payment information within 22 days of LEADx’s notice, your access to the Service may be suspended and you will need to update your card information in order to resume use of the Service. There will be no refunds or credits for partial months of service.
2.4 TAXES
Unless stated otherwise in the Service Order, all fees for Services exclude sales tax, GST, VAT, or other similar taxes. Except for any income taxes payable by LEADx, you are responsible for all other taxes or duties payable under applicable law relating to the Services provided under this Agreement, including any penalties or interest. If LEADx is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with valid evidence that no tax should be invoiced.
3 Data Protection
3.1 PRIVACY
In the course of using the Services, you or your Users may transfer to us Customer Data containing personal data. You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with this Agreement.
If you or your Users are based in the European Union while using our Services, we will process your personal information as a data processor on your behalf. In this case, you will be considered to be the data controller of the personal information as defined in Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR) and the EU e-Privacy Directive (Directive 2002/58/EC).
If requested, we will execute the European Union Standard Contractual Clauses to facilitate the transfer of personal information to countries outside the European Union in accordance with Article 26(2) of the EU Data Protection Directive 95/46/EC.
Under no circumstances will any entity in the LEADx Group be deemed a data controller with respect to Customer Data under any relevant law or regulation.
3.2 SECURITY
LEADx will store and process Customer Data in a manner consistent with industry security standards. LEADx has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data.
3.3 DISASTER RECOVERY
LEADx will retain backup copies of Customer Data made in the ordinary course of business by LEADx, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in this Agreement, LEADx will retain these backups for a period of up to 90 days from the time that each backup copy is generated. Thereafter, Customer agrees and acknowledges that Customer Data will be irretrievably deleted from backups.
4 Confidentiality
4.1 CONFIDENTIAL INFORMATION DEFINITION
In this Agreement, Confidential Information means any information disclosed by a party (the Discloser) to the other party (the Recipient) in connection with the use of the Services that is marked confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Confidential Information does not include any information that:
(a) is or becomes public through no fault of the Recipient;
(b) the Recipient already lawfully knew;
(c) was rightfully given to the Recipient by a third party free of any confidentiality duties or obligations; or
(d) was independently developed by the Recipient without reference to the Discloser’s Confidential Information as demonstrated by documentary evidence.
4.2 CONFIDENTIALITY OBLIGATIONS
The Recipient must:
(a) protect the Discloser’s Confidential Information using commercially reasonable efforts and no less than the same efforts it uses to protect its own Confidential Information;
(b) not disclose the Discloser’s Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
(c) only use the Discloser’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement; and
(d) ensure that its affiliates, employees, directors, contractors, agents and professional advisors only use the Discloser’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement.
4.3 COMPELLED DISCLOSURE
The Recipient may disclose the Discloser’s Confidential Information to the extent required by law or legal process, but only after it, if permitted by law:
(a) uses commercially reasonable efforts to notify the Discloser in writing;
(b) gives the Discloser the opportunity to challenge the requirement to disclose; and
(c) cooperates with the Discloser if the Discloser seeks an appropriate protective order.
4.4 NON-DISCLOSURE AGREEMENTS
The provisions of this Section 4 will supersede any non-disclosure agreement between the Parties and such agreement will have no further force or effect.
5 Intellectual Property
5.1 LEADx PROPRIETARY RIGHTS
This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the LEADx Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
5.2 CUSTOMER INTELLECTUAL PROPERTY RIGHTS
You retain all ownership and Intellectual Property Rights to Customer Data. LEADx does not claim ownership over any Customer Data.
5.3 CUSTOMER FEEDBACK
You have no obligation to give LEADx any suggestions, enhancement requests, recommendations, comments or other feedback relating to the Service. To the extent you provide any Feedback to LEADx, LEADx may use and include any such Feedback to improve the Service or for any other purpose.
5.4 CUSTOMER LISTS
LEADx may identify you by name and logo as a LEADx customer in promotional materials or during promotional events. If you do not want your name and/or logo to be used in this way, please contact our Customer Success team.
6 Account Management
6.1 ACCOUNT SECURITY AND ACCESS
You are responsible for safeguarding any passwords or other credentials used to access your account. Administrator or manager accounts may not be shared and may only be used by one individual per account. You are responsible for any activity occurring in your account (other than activity that LEADx is directly responsible for and is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to, or use of, your account, you should immediately notify our Customer Success team.
7 Customer Obligations
7.1 LEGAL COMPLIANCE
You must use the Services in compliance with, and only as permitted by, applicable law. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance. You must not use the Services in a way that would subject LEADx to any industry-specific regulations including the Children’s Online Privacy Protection Act, the Payment Card Industry Data Security Standard or the Health Insurance Portability and Accountability Act. You acknowledge and agree that we are not responsible for any liabilities arising from your violation of this restriction.
7.2 UNACCEPTABLE USES
You are responsible for your conduct and the conduct of your Users. You must ensure that you and your Users do not:
(a) misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
(b) circumvent or attempt to circumvent any limitations that LEADx imposes on your account (such as any User limits in the Service Order);
(c) probe, scan, or test the vulnerability of any LEADx system or network, unless with prior written authorization of LEADx;
(d) decipher, decompile, disassemble, translate, create derivative works, reverse engineer or otherwise attempt to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Services or any of the software used to provide the Services, or attempt to do so;
(e) attempt to circumvent any license, timing or use restrictions that are built into the Services; or
(f) YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
8 Term and Termination
8.1 TERM
This Agreement begins on the date you sign the Service Order or first use the Services (whichever is earlier) and continues until your Subscription ends.
8.2 TERMINATION FOR CAUSE
Each party may suspend performance or terminate this Agreement if the other party:
(a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or
(b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. LEADx may terminate this Agreement if any payment owed by you to LEADx is more than 30 days overdue.
8.3 CONSEQUENCES OF TERMINATION
If this Agreement is terminated:
(a) by you due to breach by LEADx, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; or
(b) by LEADx due to breach by you, we will bill you, and you will pay, for any accrued but unbilled fees, and you will remain liable to pay any invoices outstanding on the termination date.
In no event will expiration or termination of this Agreement relieve you of any fees payable for the period prior to the date of termination.
8.4 DATA EXPORTS
The Services include functionality that enables you to export Customer Data in your account at any time during the Term. If the foregoing functionality is not operational, we will assist you to export any Customer Data that existed in your account at the time of termination, provided you make such request before the end of your Subscription Term. However, we do not guarantee that all Customer Data will be able to be exported and only Customer Data that is permitted to be transferred to you within the terms of any applicable Confidentiality Notice or other privacy setting will be transferred to you. Upon Customer’s written request, LEADx will delete all Customer Data from its production environments.
9 Warranties
9.1 WARRANTIES
Each party represents and warrants that:
(a) it has full power and authority to enter into this Agreement; and
(b) it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable.
10 Indemnification
10.1 You agree to indemnify, defend and hold harmless LEADx, and its subsidiaries, affiliates, officers, directors, agents, and employees from and against any costs, damages, expenses (including reasonable attorneys’ fees), judgments, losses and other liabilities (including amounts paid in settlement) (“Liabilities”) incurred as a result of any third-party action, claim, demand, proceeding or suit (“Claim”) to the extent arising from or in connection with (a) your use of the Software and/or Service in violation of this Agreement, or (b) any employment decision or action you take due to information available through or your use of the Service.
10.2 LEADx agrees to indemnify, defend and hold harmless you, and your affiliates, officers, agents, and employees from and against any Liabilities incurred as a result of any third-party Claim to the extent arising from or in connection with an allegation that your use of the Software and/or Service in accordance with this Agreement infringes the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall LEADx have any obligations or liability arising from: (a) use of the Software and/or Service in a modified form or in combination with materials or software not furnished by LEADx, and (b) any User Content, information or Data provided by you or your end-users.
10.3 A party seeking indemnification hereunder shall (a) promptly notify the other party in writing of the Claim, (b) give the indemnifying party sole control of the defense of such Claim and all negotiations for the compromise or settlement thereof (provided that if any settlement requires any action or admission by the indemnified party, then the settlement will require the indemnified party’s prior consent), and (c) provide the indemnifying party with all reasonable cooperation, information and assistance in connection with such Claim; provided, however, that failure by the indemnified party to provide prompt notice of a Claim, grant such sole control, and/or provide such cooperation, information and assistance, shall not relieve the indemnifying party of its obligations under this Article 11, except to the extent that the indemnifying party is materially prejudiced by such failure. The indemnified party may be represented by its own counsel, at its own expense.
11 Disclaimers and Limitations of Liability
11.1 DISCLAIMERS
Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. LEADx provides the services on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services, or regarding any Customer Data or other content associated with your account.
11.2 EXCLUSION OF LIABILITY
To the extent permitted by applicable law, neither party will be liable for any lost profits, business interruption, replacement Services or any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose, and regardless of the theory of liability.
11.3 LIMITATION OF LIABILITY
To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid or payable by you to LEADx under this Agreement during the 12 months prior to the event giving rise to the liability or claim.
11.4 EXCEPTIONS TO LIMITATIONS
The limitations of liability in clauses 11.2 (Exclusion of liability) and 11.3 (Limitation of liability) do not apply to violations of a party’s Intellectual Property Rights by the other party or each party’s indemnification obligations under this Agreement.
12 Dispute Resolution
12.1 DISPUTE RESOLUTION
Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:
(a) give the other party notice of the dispute and its nature;
(b) give the other party the opportunity to remedy any breach of this Agreement within 30 days; and
(c) hold good faith negotiations with the other party to settle the disputed matter.
13 Governing Law
13.1 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without reference to conflict of laws principles. Any legal action or proceeding with respect to this Agreement must be brought in the courts of the State of Delaware, and or the courts of the United States of America for the District of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14 Other Terms
14.1 ASSIGNMENT
Neither party may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.
14.2 ENTIRE AGREEMENT
This Agreement (including any documents incorporated by reference to a URL), constitute the entire agreement between you and LEADx and supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void.
14.3 FORCE MAJEURE
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or general internet disturbance) that was beyond the party’s reasonable control (except for payment of any money owed).
14.4 INDEPENDENT CONTRACTORS
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.
14.5 NO WAIVER
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
14.6 SEVERABILITY
If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.
CONTACT INFORMATION
Notices to LEADx must be sent to LEADx, 1635 Market Street, Suite #1600, Philadelphia, Pennsylvania 19103, or by email to info@leadx.org. Notices to you may be sent to the email address associated with the Customer Contact details in the Service Order.