Outleads provides its services subject to the terms and conditions described in these Terms of Service (hereinafter "Service Agreement"). Outleads Inc. owns intellectual property rights in these services. These services are protected by laws and treaties pertaining to intellectual property including, but not limited to, copyright laws and treaties. To obtain eligibility to utilize Outleads’ services, you must accept this Service Agreement by clicking the "I Accept" button at the end of this agreement or via another given method.
BY INSTALLING OR USING ANY PORTION OF THE OUTLEADS PLATFORM AS OUTLINED BELOW, YOU AGREE TO ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL OR USE ANY PORTION OF THE OUTLEADS PLATFORM.
Please read carefully the terms of this Service Agreement, as accepting the terms of this Service Agreement creates a binding legal commitment. Please direct all questions about this Service Agreement to the Outleads Team at outleads.com/contact.
1. Definitions
“Client” means the user together with the business or other entity accepting the terms of this Service Agreement.
“Client Data" means data and other information made available to Outleads through the use of the Outleads Platform under this Service Agreement. This data includes call records, audio call recordings, and SMS message content.
"Documentation" means all of the Outleads Platform usage instructions, code snippets, help files and technical documentation created and published by Outleads as they relate to the Outleads Platform.
"Pricing Schedule" means the schedule of Outleads Platform usage fees accessible at outleads.com/pricing, which may be updated periodically and Client may access said Pricing Schedule for the latest pricing information.
"Assets" means the Outleads website, Documentation, and technical support related to the Outleads Platform provided by Outleads to Client.
"Outleads Platform" means the services Outleads creates and provides to Client under this Service Agreement, including all programs, functions, features, and reports, as well as future upgrades or updates to any of the foregoing created and provided by Outleads, including without limitation any software or code snippets Outleads makes available to Client and that are related to Client’s usage of the Outleads Platform.
2. Outleads Platform Services
2.1 Provision of Services.
Outleads shall make the Outleads Platform available to Client, granting Client a right to use the Outleads Platform solely in connection with and as necessary to complete Client’s activities hereunder. Client agrees that the aforementioned right is revocable, non-transferable, non-exclusive, and subject to the terms and conditions of this Service Agreement.
2.2 Using the Outleads Platform.
Client shall be solely responsible for all use, authorized and non-authorized, of the Outleads Platform and Documentation under its account, including the integrity and quality of Client Data. Client shall employ all reasonable preemptive precautions to avert unauthorized access to its account. If unauthorized access or use occurs, Client shall notify Outleads promptly of any such occurrence.
2.3 Platform Updates.
Client acknowledges and understands that the functionality, features, and code of the Oulteads Platform may change over time without notice. At any time, Client is responsible for ensuring that requests made to the Outleads Platform are compatible with then-current Outleads Platform code. Although Outleads strives to avoid changes that shall render existing Client code obsolete, should any such changes become necessary, Outleads shall reasonably attempt to notify Client at least 10 days prior to implementing said changes.
2.4 Data Storage.
Client acknowledges that Outleads does not guarantee any data storage. Client further agrees to release Outleads from any liability whatsoever for any losses, loss of data, loss of profits, liabilities, damage, or any other ramifications that Client may incur resulting directly or indirectly from the deletion or other loss of Client Data.
2.5 Usage Restrictions.
Client shall not transfer, resell, lease, license or otherwise make available for a profit the Outleads Platform to any third party. Client shall ensure that the Outleads Platform provided by Outleads hereunder is used in accordance with all applicable regulations, laws, and rights, including third party rights. Client certifies that Outleads may use Client Data as deemed necessary to make available and improve the Outleads Platform, without limitation. Client shall not use the Outleads Platform in any manner that violates any data protection order, regulation, statute, or similar law. Client shall not modify the Outleads Platform or create any derivative work of the Outleads Platform or its accompanying documentation. Derivative works include but are not limited to translations. Client shall not alter or reproduce any files, libraries, or databases of the Outleads Platform. Except as permitted by applicable law, Client shall not, and shall not make any attempt to, reverse engineer, decompile, disassemble or otherwise create, re-create, or permit or assist any third party to create, re-create or derive the source code of any software provided to Client hereunder.
3. Usage Fees
3.1 Standard Rates.
Client agrees to pay the usage fees set forth in the Pricing Schedule.
3.2 Net of Taxes.
All applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges, whether charged to or against Outleads, shall be payable by Client. Client shall not withhold any amounts from any usage fees due to Outleads for the purpose of paying such taxes.
3.3 Post-Payment.
Outleads may allow Client to pay fees accrued from usage in arrears. In such an event, Client shall submit the full amounts due hereunder within 30 days of the date of the invoice. If Client fails to address an overdue payment within 10 days of written or electronic notice from Outleads, Outleads may assess a late fee. Client agrees to pay the late fee, which shall be 3% per month or the maximum amount allowed by law, whichever is less.
3.4 Suspension of Access.
If Client’s usage fees exceed Client’s prepaid balances, or in the event of any other failure to pay fees due as described in this Section (3), Client agrees that Outleads may suspend Client’s access to the Outleads Platform without prior notice. Client further releases Outleads from any liability whatsoever for any losses, loss of data, loss of profits, damage, liabilities, and all other repercussions that Client may incur from any such loss of access pursuant to this Section (3).
3.5 Billing Disputes.
In the event that Client disputes any portion of any fees payable by Client under this Service Agreement, Client shall provide Outleads a written notice of such dispute within 30 days of the applicable charge. Outleads shall work with Client to resolve the disputed charge promptly. Client shall not be able to dispute any payable fees upon expiration of the 30-day period described in this Section.
4. Disclaimers of Warranty
Outleads makes no warranty that the Outleads Platform will meet your requirements or operate under your specific conditions of use. Outleads makes no warranty that operation of the Outleads Platform will be secure, error free, or free from interruption.
YOU MUST DETERMINE WHETHER THE OUTLEADS PLATFORM SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE OUTLEADS PLATFORM TO MEET YOUR REQUIREMENTS. OUTLEADS WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
OUTLEADS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. THE OUTLEADS PLATFORM AND PROPERTIES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
5. Limitation Of Liability & Exclusion of Damages
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL OUTLEADS, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST REVENUES, LOST PROFITS, LOST BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE OUTLEADS PLATFORM, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF OUTLEADS OR ANY OTHER PARTY, EVEN IF OUTLEADS IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. EVEN IF OUTLEADS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN , CONTRACT, TORT, OR OTHERWISE, WILL OUTLEADS BE LIABLE TO CLIENT FOR ANY DIRECT DAMAGES, LIABILITIES, OR COSTS IN EXCESS OF THE AMOUNTS PAID BY CLIENT DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS INCURRED UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIBABILITY LIMITATIONS SET FORTH HEREIN IN DECIDING WHETHER TO ENTER INTO THIS AGREEMENT.
6. Termination
6.1 Service Agreement Term.
The term of this Service Agreement shall begin on the date this Service Agreement is accepted by Client, or the date that Client first installed, had installed or used any component of the Outleads Platform, whichever is earlier. This Service Agreement shall continue for a period of twelve (12) months, and at the conclusion of this initial term the Service Agreement shall automatically renew for additional one-year terms unless either party provides notice of non-renewal at least 30 days prior to the end of any term.
6.2 Termination of Agreement.
Upon 30 days written notice, either party may terminate this Service Agreement for any reason. Either party may also terminate this Service Agreement if the other party commits a material breach of this Service Agreement and does not remedy said breach within 5 days of receiving written notice of such breach. Outleads may also suspend the Outleads Platform immediately upon notice for cause in one of the following cases:
(1) An unusual spike or increase in Client’s use of the Outleads Platform which appears to be related to fraudulent activity, or is impeding the availability of the Outleads Platform.
(2) In its sole discretion, Outleads determines that any of the functionality promoted in the Outleads Platform is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reasons.
(3) Subject to applicable law, upon Client’s liquidation, commencement of dissolution proceedings, disposal of Client assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Client become the subject of bankruptcy or similar proceeding.
Upon termination, access to the Outleads Platform may be temporarily or permanently blocked. Any attempts by Client to access the Outleads Platform following termination may be billed as Client activity in accordance with the Pricing Schedule.
6.3 Survival.
Upon termination or expiration of this Service Agreement, the following shall survive:
(1) Client’s payment obligations.
(2) Terms of this Section (6.3).
(3) Terms of the following: Section 2.2 (Using the Outleads Platform), Section 2.4 (Data Storage), Section 2.5 (Usage Restrictions), Section 4 (Disclaimers of Warranty), Section 5 (Limitation Of Liability & Exclusion of Damages), Section 7 (Indemnification), Section 8 (Dispute Resolution), Section 9 (Ownership; Confidentiality), and Section 10 (General).
7. Indemnification
7.1 Indemnification by Client.
Client shall defend, indemnify and hold Outleads harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action ("Claim") arising out of or relating to Client's activities under this Service Agreement, including without limitation, any violation by Client of the terms of Section 2.5 (Usage Restrictions). At Client’s expense, Outleads shall cooperate as fully as reasonably required in the defense of any Claim against Client. Outleads reserves the right to retain separate counsel for Outleads at Client’s expense. If Outleads determines that Client has not responded reasonably to the applicable Claim, Outleads reserves the right to assume the exclusive defense and control of any matter in which Client is a named party or otherwise subject to indemnification under this Section. In such an event, Client shall pay all costs, including reasonable attorneys’ fees and any settlement amounts or damages awarded against Outleads, in connection with any Claim. Client shall also be liable to Outleads for any costs and attorneys’ fees incurred by Outleads to establish or enforce Outleads’ right to indemnification under this Section.
7.2 Governing Law.
Except as provided in Section 8, this Service Agreement shall be governed by the laws of the State of New York, without regard to its rules or provisions governing choice of law and conflict of laws. This Service Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
8. Dispute Resolution
8.1 Dispute Arbitration.
Except as provided in this Section, any dispute arising under this Service Agreement shall be determined by binding arbitration in New York, New York in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the "Federal Arbitration Act").
(a) Proceedings.
The arbitration shall be governed by the then-current terms of the Commercial Arbitration Rules of the American Arbitration Association (the "Rules"). The arbitration shall be held with a single arbitrator appointed in accordance with the Rules. The award of the arbitrator shall be based on the evidence admitted as well as the substantive law of the State of New York and the United States, as applicable, and shall contain an award for each issue and counterclaim. The award shall detail in writing the factual findings and legal reasoning for said award. The arbitrator shall not be entitled to modify the terms of this Service Agreement. Except as provided in the Federal Arbitration Act, the arbitration award shall be final and binding on the parties, and judgment may be entered in any court of competent jurisdiction. Each party shall be entitled to obtain a copy of non-privileged relevant documents in the possession or control of the other party. Each party shall be entitled to take a reasonable number of depositions, and all such discovery shall be in accordance with procedures approved by the arbitrator. This Section 8 does not alter in any way the statute of limitations that shall apply to any claims or counterclaims asserted by either Outleads or Client.
(b) Injunctive Remedies.
Notwithstanding any provision in this Section to the contrary, Outleads reserves the right to seek injunctive remedy in any court having jurisdiction over the parties to enjoin or prevent any action by Client or threats of such action in violation of the terms of this Service Agreement.
(c) Individual Basis Only.
It is the intent of the parties to require any claims or controversies between them to be submitted to arbitration on an individual basis only.
CLAIMS SUBJECT TO THIS ARBITRATION PROVISION MAY NOT BE JOINED OR CONSOLIDATED IN ARBITRATION WITH ANY CLAIM OF ANY OTHER PERSON OR ARBITRATION, OR BE ARBITRATED ON A CLASS BASIS, IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ON BEHALF OF ANY OTHER PERSON, UNLESS AGREED TO BY THE PARTIES IN WRITING.
9. Ownership; Confidentiality
9.1 Ownership Rights.
As between the parties, Outleads exclusively owns and reserves all right, title and interest in and to the Outleads Platform, Assets and Outleads’ Confidential Information. As between the parties, Client exclusively owns and reserves all right, title and interest in and to the Client Data and Client’s Confidential Information.
9.2 Branding Collateral.
Subject to the terms of this Service Agreement, Outleads grants Client and Client grants Outleads a reciprocal right to use and display company name and marks (the “Marks”) on websites and in other promotional materials. This right is limited to display related to the activities described under this Service Agreement. Both parties agree that any such display of the Marks shall be in accordance with the company and mark owner's (“Owner”) usage guidelines and shall inure to the benefit of said Owner. The non-owning party (“Publisher”) shall not use, register or take other action with respect to any of the Marks it does not own, except to the extent authorized in advance writing by the Owner. In its efforts, Publisher shall always use the then-current Marks and shall not alter, add to, delete from or modify any of the Marks. In addition, Publisher shall not, at any time, misrepresent its relationship with Owner, including by presenting itself as an affiliate or other legal agent of Owner. Any termination of this Service Agreement shall automatically terminate the reciprocal publishing right described in this Section.
9.3 Confidentiality.
(a) Definition. "Confidential Information" means any information or data, in tangible or intangible form, disclosed by Outleads or Client, that is marked or otherwise designated as confidential and/or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the disclosure scenario. "Confidential Information" does not include any information which: (i) is publicly available, unrelated to any actions or omissions by the receiving party; (ii) receiving party had fully known, without restrictions, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restrictions, by another person, and such disclosure did not violate the disclosing party's rights; or (iv) the receiving party is developing independently, without using or referencing the disclosing party’s Confidential Information.
(b) Disclosure & Usage. Both Outleads and Client agree that each party shall use the other party’s Confidential Information solely in accordance with the provisions of this Service Agreement. Both parties further agree that each party shall not disclose the other party’s Confidential Information to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Further, each party agrees to exercise due care in protecting the other party’s Confidential Information from unauthorized use and disclosure. Both parties acknowledge that each party may disclose the Confidential Information of the other party, in whole or in part, to persons who have a need to know the Confidential Information. Both parties acknowledge that such persons, including employees, representatives, actual or potential investors and subcontractors, are legally bound to keep such information confidential consistent with the terms of this Section. As required by law, either party may disclose Confidential Information of the other party, but only upon prior written notice to the other party (where allowed by law), given that the party has employed reasonable effort to minimize such disclosure as permitted by applicable law.
9.4 Injunctive Remedies.
Both Outleads and Client hereby expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of the terms described in this Section. Both Outleads and Client further acknowledge and agree that, in the event of an actual or threatened breach of this Section’s terms, the non-breaching party shall be entitled to seek immediate injunctive and other equitable relief from the breaching party, and that seeking such relief shall not waive any other rights or remedies available to the party. Each party is obligated to notify the other party promptly in writing of any violations of the confidentiality obligations set forth in this Section when it becomes aware of such violations.
10. General
10.1 Assignment.
Client may not assign its rights and obligations under this Service Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer its rights and obligations under this Service Agreement, in whole or in part, without first obtaining Outleads’ express written consent. Any attempted assignment, delegation, or transfer in violation hereof shall be null and void.
10.2 Outleads-Client Relationship.
Each party is an independent contractor for the purpose of the performance of each and every part of this Service Agreement. Each party shall be solely responsible for all of its employees and agents, including labor costs and expenses arising in connection therewith. Each party shall also be solely responsible for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, as well as those of its employees or agents, in the execution of this Service Agreement. Client acknowledges that Client does not have the capacity authority to commit Outleads in any way. Client shall not attempt to commit Outleads or imply that Client has the right to do so.
10.3 Unenforceability.
In the event that any provision of this Service Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable or invalid, such provision shall be limited or eliminated to the minimum extent necessary by law in order to render such provision enforceable. In any event, the remainder of this Service Agreement shall continue to remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
10.4 Amendment/Waiver.
No modification to this Service Agreement, nor any waiver of any rights, shall be effective unless consented to in writing and signed by both parties. A waiver of any breach or default by either party shall not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either party in enforcing any of the provisions of this Service Agreement shall not be deemed as a waiver of future enforcement of that or any other provision of this Service Agreement.
10.5 Other Terms.
This Service Agreement supersedes all prior and contemporaneous proposals, agreements, statements, sales materials, presentations, or other communications, both oral and written. No oral or written information or advice given by Outleads, its agents or employees shall be pursued to create a warranty or in any way expand the scope of the warranties described in this Service Agreement. There shall be no force or effect to any different terms of any purchase order or other similar form even if signed by the parties after the date of commencement hereof.
10.6 Force Majeure.
Either party is not liable under this Service Agreement for non-performance caused by events or conditions beyond that party's control (a "Force Majeure Event") if the party makes reasonable efforts to perform. Either party may terminate this Service Agreement on written notice to the other party if the Force Majeure Event persists for a continuous period longer than 30 days.
10.7 Notices.
Any notice hereunder shall be submitted in writing to the receiving party by certified mail, return receipt requested, personal delivery, or by overnight delivery. Outleads may use the address provided by Client for billing purposes.
10.8 Government Use.
Outleads provides the Outleads Platform for federal government end use solely in accordance with the terms of this Service Agreement. If Client is a department, agency, or otherwise represents any government organization, the terms of this Service Agreement hereby restrict use, reproduction, modification, disclosure, duplication, release, or transfer of the Outleads Platform, or any related documentation of any kind (including software, manuals, and technical data). Any other use is prohibited. Other than provided in this Service Agreement, no rights are hereby granted. The Outleads Platform is developed solely at private expense.