This agreement (the “Agreement”) is effective as of _____________ (the “Effective Date”) by and between LeadMaster, Inc. a Georgia corporation (“LeadMaster”) and ______________ (the “End User”). All references herein to this Agreement include all of the Appendices to this Agreement.
In consideration of End User retaining LeadMaster to provide and maintain the Online Application (the “System”) for End User as well as related Services (the “Services”), it is agreed as follows:
The scheduled term of this Agreement (the “Term”) shall be an initial term of one (1) year beginning on the Effective Date and continuing thereafter on an annual basis until terminated in writing pursuant to the guidelines outlined herein.
a) This Agreement contains the following:
Appendix 1: End User Profile, Services and Prices
b) End User hereby retains LeadMaster and LeadMaster hereby agrees to provide and maintain the online application. These services will be delivered via the Internet and will be defined in the following paragraphs. LeadMaster will provide the System via the website www.company.com (the “Site”) by allowing End User to link to the System logon page. End User is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Service.
LeadMaster or its designee(s) shall provide telephone and email support during regular business hours to appointed End User Administrator.
- Ownership of Data
LeadMaster acknowledges that all data entered into the System by End User or by LeadMaster on End User’s behalf is the sole ownership of End User. LeadMaster reserves the right to download the database files for maintenance and backup purposes.
- User Responsibilities and Restrictions
a) LeadMaster grants End User access to the System by End User employees. A user account is required to access the Service and may be accessed and used only by those authorized individuals who are registered with LeadMaster. End User is not authorized to give other organizations access to the System or otherwise share the system with anyone outside the End User organization unless otherwise agreed by LeadMaster. User accounts cannot be “shared” or used by more than one individual. A user account can be transferred to a new user only if a previous user becomes inactive and is unable to access the Service. LeadMaster reserves the right to cancel service if this is not observed.
b) End User and its employees are solely responsible for any and all activities that occur under the user accounts contracted by End User. End User shall notify LeadMaster immediately of any unauthorized use of a password or account or any other breach of security that is known or suspected by End User. End User shall also use its best efforts to stop immediately any copying or distribution of Content that is known or suspected by End User. LeadMaster shall not be responsible for (i) any unauthorized access to, or alteration of, your transmissions or data, or any material, information or data sent or received, regardless of whether the data is actually received by LeadMaster (ii) any transactions entered into through the Service, or (iii) any failure by End User to abide by this Agreement.
c) End User and its employees are permitted to store, manipulate, analyze, reformat, print, and display the content only for End User’s internal business use. Unauthorized use, resale or commercial exploitation of the Service and/or the content in any way is expressly prohibited. End User and its employees shall not copy, license, sell, transfer, make available, distribute, or assign the System or the Content to any third party.
LeadMaster and End User recognize and acknowledge that this Agreement creates a confidential relationship between LeadMaster and End User and that information concerning these business affairs is confidential in nature. All such information concerning is hereinafter collectively referred to as “Confidential Information.”
LeadMaster and End User agree that, except as directed by the other party, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever and that each party shall take effective precautions, contractual and otherwise, reasonably calculated to prevent unauthorized disclosure or misuse of such information by any of its employees or by any other person having access to such information. Within ninety (90) days after the expiration or the termination of the Agreement by either party for any reason, each party agrees promptly to return to the other party, or to certify the destruction of, any physical or written records containing such information then in its possession or control that relate to the other party.
(a).EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, ALL WARRANTIES BETWEEN LEADMASTER AND END USER, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED AND EXCLUDED.
(b) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, INJURIES TO PROPERTY, LOSS OF TIME, INCONVENIENCE, LOSS OF USE OF ANY DESIGNATED LEADMASTER PRODUCT OR ASSOCIATED SERVICE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR OTHER ECONOMIC LOSS WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND WHETHER THE CLAIM IS FOR BREACH OR REPUDIATION OR CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. EXCEPT FOR INDEMNIFICATION CLAIMS UNDER SECTION 9 RELATING TO PERSONAL INJURY OR DAMAGE TO OR DESTRUCTION OF TANGIBLE PROPERTY, LEADMASTER’S LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THE AGREEMENT (INCLUDING THESE TERMS AND CONDITIONS OF SALE) AND/OR USE OF A DESIGNATED LEADMASTER PRODUCT OR SERVICE SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE PRICE OF THE AFFECTED DESIGNATED LEADMASTER PRODUCT OR SERVICE. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING OUT OF THESE TERMS AND CONDITIONS ON THE PURCHASE AND SALE OF DESIGNATED LEADMASTER PRODUCTS.
- Mutual Indemnification
a) LeadMaster agrees to indemnify and hold harmless End User and its board members, officers and employees from any liability (including reasonable attorney’s fees and costs) imposed against the End User arising out of or in connection with End User’s proper and authorized use of the Service or Content.
b) The End User agrees to indemnify and hold harmless LeadMaster from any liability (including reasonable attorney’s fees and costs) imposed against LeadMaster by reason of the negligent actions or omissions of the End User or its employees in performing its services specified in the Agreement.
- Terms of Payment
a) During the Initial Term as defined in Section 1, fees payable by End User will be based on the number of User Seats purchased by End User, and will be calculated in accordance with Appendix 1 attached hereto. For purposes of this Agreement, a “Seat” shall mean one (1) end user of a system. LeadMaster agrees that the foregoing fees shall be fixed during the Initial Term and will be renegotiated upon conclusion of the Initial Term. End User agrees that during the Initial Term it will pay for the minimum number of Seats as designated in Appendix 1.
b) An initial invoice for the initial set-up fee (as set forth in Appendix 1) will be sent by LeadMaster to End User upon execution of the Agreement. Thereafter, End User will be invoiced monthly based upon the maximum activated Seats in the prior month. All amounts invoiced for the System and Services rendered by LeadMaster are due Net thirty (30) days after the invoice date. All invoiced amounts which remain unpaid after the thirty (30) day period shall accrue interest at one and one-half percent (1.5%) per month, or, if less, the maximum percentage allowed by applicable law, including the payment of all accrued interest. Customer agrees that it shall pay all invoices in a timely manner. Customer’s failure to pay outstanding invoices in a timely manner for a period of three (3) consecutive months shall constitute a breach of this Agreement.
If one party (offending party) breaches one or more obligations hereunder, the other party (offended party) shall give the offending party notice which shall specify the nature of the breach. The offending party shall then have 30 days from the receipt of such notice to remedy the breach for which such notice has been given. If at the end of such 30 day period, the Offending party has not cured the breach, the Offended party may thereupon terminate this Agreement by giving the offending party a written notice of termination and at the expiration of the 14th day following the delivery of such notice, the agreement shall be deemed to be terminated and the offended party shall be relieved from further performance of its obligations hereunder.
- Termination by LeadMaster
Notwithstanding the previous section, LeadMaster may terminate this agreement upon thirty (30) days prior written notice if the End User fails to pay LeadMaster in accordance with the provisions of this Agreement.
- Termination by End User
End User may terminate this agreement when it determines that termination is in the best interests of the End User by giving LeadMaster thirty (30) days written notice of the termination. If the agreement is terminated per this section, LeadMaster shall be paid its fee for all services rendered to date of termination.
Except as expressly provided to the contrary herein, each term and condition of this Agreement, and any portion thereof, shall be considered severable and if, for any reason, any such provision hereof is held to be invalid, contrary to, or in conflict with any applicable present or future law, regulation or public policy in a final, unappealable ruling issued by any court, agency or tribunal with competent jurisdiction in a proceeding to which to LeadMaster or End User is a party, that ruling shall not impair the operation of, or have any other effect upon, such other portions of the Agreement as may remain otherwise enforceable.
- Force Majeure
Neither party shall be responsible for any delay or failure of performance resulting from any events or conditions not reasonably within the control of such party, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable. In such event, the party affected shall be excused from performance on a day-to-day basis to the extent of such interference, and the other party shall likewise be excused from the performance of its obligations on a day-for-day basis to the extent such party’s obligations relate to the performance so interfered with.
- End User’s Authority
The End User represents and warrants to LeadMaster that the End User has the requisite power and authority to enter into and perform the terms of this agreement and that the End User has done and will continue to do all things necessary so that this agreement will be valid, binding and legally enforceable upon the End User.
- Limitation on Actions
No action, regardless of its form, arising out of this Agreement, may be brought by either party more than two (2) years after the cause of action has arisen.
Any notice or other information required or authorized by the Agreement to be given by either party to the other may be given by hand or sent (by first class prepaid mail, facsimile transmission, or comparable means of communication) to the other party at the address for notices set forth in the Agreement (or at such other address as any party may hereafter designate by notice to the other).
This Agreement may be assigned by to its affiliates or successors without the prior written approval of LeadMaster. LeadMaster may assign this Agreement, or cause some or all of its rights and obligations hereunder to be assumed by any parent or wholly-owned subsidiary of LeadMaster, including its parent company.
- Entire Agreement
This Agreement, including all appendices, schedules, exhibits and attachments, contains the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral. Unless in writing and signed by the parties, no modification, course of conduct,amendment, failure to enforce any term, or require performance shall be binding or construed as a waiver.
This Agreement may be amended or modified only by a written instrument signed by LeadMaster and End User.
- Governing Law
This Agreement shall be governed by the laws of the State of Georgia, without regard to conflict of law principles.
IN WITNESS WHEREOF, the parties have entered into this Agreement, effective as of the date set forth above:
|Signature: _____________________________||Signature: ______________________________|
|Name (Print): ___________________________||Name (Print): ___________________________|
|Title: _________________________________||Title: __________________________________|
|Address: _______________________________ _______________________________||Address: _______________________________ _______________________________|
Appendix 1: End User Profile, Services and Prices
LeadMaster shall provide End User with the one-time set-up services specified below, which include, among others, certain system configuration and training services. LeadMaster and End User may from time to time agree upon certain additional services and the cost for such additional services to be rendered by LeadMaster. Such additional services must be agreed upon in writing by the parties.
The initial customer profile and related pricing is as follows:
|Initial # of Users||XXX||$X per [month]|
|Initial Online Database Size||Max. X records||$X per [month] if above base|
|Initial Service Bundle Setup and technical support program includes: consulting services on customization needs; SQL database setup; setup of custom tables and fields; lead assignment logicconversion and load of initial data file; development of standard import template;initial logon and password setup; quality assurance testing; and basic administrator training.||90 days||$X|
|Additional Services (e.g. ancillary services, data load charges, data entry, support, development, customization etc.)||XXX||$X|
|Initial Term||[e.g. 1 year]|
|Billing||[e.g. Net 30]|