ANNEXE 1 – TERMS AND CONDITIONS
1. INTERPRETATION
1.1 Where the context permits or requires, the defined terms below shall be interpreted as follows:
a. “Activation Date” means the date upon which the supplier shall activate the service for each authorised user.
b. “Authorised Users” means those customers of the Reseller who the Reseller authorises to use the Service and the Documentation.
c. “Confidential Information” means any information disclosed by or relating to a party, including: information arising during the term of this Agreement; information about a party’s business affairs; information about a party’s operations, products or trade secrets; information about a party’s technology (including any know-how and source code) and any derivatives of any part of any of them and which (i) is marked or identified as confidential; or (ii) would be regarded as confidential by a reasonable business person;
d. “Documentation” means the content made available to the Reseller and the Authorised Users by the Supplier online via the Supplier’s Website or via the Customer Success Manager.
e. “DP Laws” means to the extent applicable to the activities or obligations of the parties under or pursuant to this Agreement, which shall include the EU GDPR, the UK GDPR, and the Data Protection Act 2018. Including without limitation, as applicable, the California Consumer Privacy Act of 2018, (“CCPA”), the Virginia Consumer Data Protection Act (from and after January 1, 2023) (the “VCDPA”), the Colorado Privacy Act (from and after July 1, 2023) (the “CoPA”), Washington My Health My Data Act (as effective), the European Union General Data Protection Regulation, (EU) 2016/679 (“GDPR”), the UK General Data Protection Regulation (“UK GDPR”), Canada’s Personal Data Protection and Electronic Documents Act (“PIPEDA”), all state and local laws requiring notice of breaches involving Personal Data and any and all orders, rules and regulations promulgated under any of the foregoing, all as the same have been amended and may be amended in the future.
f. “Effective Date” means the date of this agreement.
g. “IPRs” means all copyrights and related rights, patents rights to inventions, utility models trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights (including any database rights), topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
h. “Renewal Period” means the period described in clause 8.1.
i. “Reseller Data” means the data inputted or supplied by the Reseller, Authorised Users, or the Supplier on the Authorised User’s behalf but excluding data captured by the Software for the purpose of using the Service or facilitating the Authorised User’s use of the Service or any other data created by the Supplier in its provision of the Service all of which shall be the property of the Supplier (excludes Lead Forensics’ proprietary data).
j. “Reseller’s End User” means the final customer who purchases or uses the SaaS product through the reseller, rather than directly from the Supplier.
k. “Service” means the service provided by the Supplier to the Authorised Users on the Reseller’s behalf under this agreement via the Supplier’s Website for the monitoring, analysis and reporting of traffic to each Authorised User’s website.
l. “Start Date” means the agreement date set out in the Reseller agreement
m. “Software” means the online software applications provided by the Supplier as part of the Service.
n. “Subscription Fees” means the subscription fees payable by the Reseller to the Supplier for the User Subscriptions.
o. “Supplier’s Website” means www.leadforensics.com or such other web address notified by the Supplier to the Reseller from time to time, which sets out a description of the Service and the user instructions for the Service.
p. “Term” has the meaning given in clause 8.1.
q. “User Subscriptions” means the user subscriptions purchased by the Reseller pursuant to clause 5 and as set out in the Reseller Wholesale User pricing table which entitles Authorised Users to access and use the Service and the Documentation for the User Subscription Term in accordance with this agreement and for one (1) Authorised User Website per User Subscription.
r. “User Subscription Fees” means the subscription fees payable by each Authorised User to the Reseller.
s. “User Subscription Term” means the period of one (1) year from the Activation Date and yearly thereafter until terminated as set out in clause 8.
2. BACKGROUND
2.1 Lead Forensics is a B2B website analytics service that provides insight and reporting solutions to our customers in exchange for a fee, enabling them to benefit from the service. The service is designed to match website traffic to known company information. By signing this agreement, the Reseller acknowledges that not all website traffic can be matched. As far as company-related data is available, a dedicated portal allows the Reseller to access company-related data and reporting functionality. The Reseller can add unlimited users to their portal.
2.2 The Reseller wishes to supply the Service to Authorised Users.
2.3 The Supplier shall provide the Service, and the Reseller undertakes to accept delivery and fulfil payment obligations, in accordance with the terms and conditions set forth in this agreement.
3. USER SUBSCRIPTIONS
3.1 For each User Subscription it wishes to purchase, the Reseller shall make a request to the Supplier in writing to supply the Service for the User Subscription Term via the order form in Annexe 2. Such request to include, but not limited to, the identity of the proposed Authorised User, the URL’s being tracked, the User Subscription Fees to be paid by that Authorised User to the Reseller and the proposed Activation Date. The Supplier shall respond to the Reseller to accept or decline the request and reserves the right in its absolute discretion to decline without giving cause.
3.2 If the Supplier approves the Reseller’s request the Reseller shall with effect from the Activation Date, pay to the Supplier the Subscription Fees for such User Subscription monthly throughout the User Subscription Term and irrespective of whether or not the Authorised User shall use or continue to use the Service throughout the User Subscription Term or at all and irrespective of whether the Reseller receives payment of the User Subscription Fees in full or at all.
3.3 Subject to clause 3.1 and clause 3.2, the Reseller may, from time to time during the Term, purchase User Subscriptions and the Supplier shall grant access to the Service and the Documentation to such Authorised Users in accordance with the provisions of this agreement.
3.4 Subject to the Reseller purchasing the User Subscriptions in accordance with clause 3.2 and clause 5.1 and the restrictions on and obligations of the Reseller set out in this agreement, the Supplier hereby grants to the Reseller for the Term a non-exclusive, non-transferable right to permit each Authorised User to use the Service and the Documentation for the User Subscription Term and solely for the purposes of each Authorised User’s internal business operations.
4. RESELLER DATA
4.1 The Reseller shall own all rights, title and interest in and to all of the Reseller Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Reseller Data.
4.2 In the event of any loss or damage to Reseller Data, the Reseller’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Reseller Data from the latest back-up of such Reseller Data maintained by the Supplier (if any). The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Reseller Data caused by any third party (except those third parties (if any) sub-contracted by the Supplier to perform Service related to Reseller Data maintenance and back-up).
4.3 If the Supplier processes any personal data on the Reseller’s behalf when performing its obligations under this agreement, the parties record their intention that the Reseller shall be the data controller and the Supplier shall be a data processor and in any such case:
4.3.1 The Reseller acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Reseller and the Authorised Users are located in order to carry out the Service and the Supplier’s other obligations under this agreement;
4.3.2 The Reseller shall ensure that the Reseller is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Reseller’s behalf;
4.3.3 The Reseller shall ensure that the relevant third parties (including Authorised Users) have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
4.3.4 The Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Reseller from time to time; and
4.3.5 Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5. INVOICE AND PAYMENTS
5.1 The Reseller shall pay the Subscription Fees to the Supplier in accordance with clause 5.
5.2 The Supplier shall invoice the Reseller for all services in advance for all orders. All fees are exclusive of VAT. This shall be added if applicable.
5.3 The Reseller will pay all invoices within 14 days of the invoice date and make such payments to the bank account nominated by Lead Forensics.
5.4 Payments made via a credit card will incur an additional 3% fee.
5.5 Time for payment of Fees is of the essence for the Agreement. In addition to any other rights or remedies of Lead Forensics, if the Reseller fails to make any payments by the due date or otherwise in accordance with this Agreement:
5.5.1 Interest will accrue on such due amounts at an annual rate equal to 5% over the then current base lending rate of HSBC Bank PLC at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment; and
5.5.2 Lead Forensics may immediately suspend the provision of the Services.
5.6 Except as otherwise provided herein, fees paid by the Reseller for Services are non-cancellable and non-refundable. Fees quoted are exclusive of applicable taxes, levies, or duties, all of which shall be the responsibility of the Reseller in accordance with applicable laws (excluding, for example, taxes imposed on Lead Forensics’ net income).
5.7 Lead Forensics does not accept payment by cheque for any services provided, including but not limited to subscription fees, setup charges, or other associated costs.
6. RIGHTS
6.1 Lead Forensics grants to Reseller a non-exclusive, royalty-free, worldwide licence for the use of the Services.
6.2 The Reseller Shall:
6.2.1 Provide Lead Forensics with all necessary access to such information required by the supplier and cooperation in relation to this agreement.
6.2.2 Comply with all applicable laws and regulations concerning its activities under this agreement.
6.2.3 Ensure that the Authorised Users use the Service and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of any such term or condition.
6.2.4 Obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Service.
6.2.5 Ensure that its network and systems, and those of each Authorised User, comply with the relevant specifications provided by the Supplier from time to time.
6.2.6 To be solely responsible for procuring and maintaining its network connections and telecommunications links and those of each Authorised User from their systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to such network connections or telecommunications links or caused by the internet.
6.2.7 Use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
6.2.8 Only supply any User Subscriptions to an End User with a business based in the United Kingdom.
6.3 During the term of the contract or for 24 months after termination the Reseller may not:
6.3.1 Distribute, display, disclose or otherwise exploit the Services as expressly set out in this Agreement.
6.3.2 License, sell, rent, lease, transfer, or assign the Services to any third party (other than Authorised Users);
6.3.3 Create any derivative works of the Services; attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software.
6.3.4 Develop (or instruct any third party to develop) a service that may reasonably be deemed to be competitive with the Services.
6.3.5 Use the Services in any unlawful manner, or for any unlawful purpose.
6.3.6 Engage in any business which, in the opinion of the Supplier, is prejudicial to business or the marketing of the Service generally.
6.3.7 Attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation.
6.3.8 Target or engage with any customer or person who is already negotiating or in contractual terms with the Supplier for the supply of the Service.
6.3.9 During the term of the contract or for 24 months after termination, be concerned directly or indirectly in the sale, promotion, marketing or development of any services that compete with the Service or have a substantially similar function to the Service.
6.3.10 Supply, provide access to or use of the Service to any person involved in the development, creation, distribution or marketing of analytic software or any competing product or product with a substantially similar function to the Software or the Service or any person involved in the web traffic analysis sector.
6.3.11 Offer or supply terms, including direct marketing material in any form, that conflict or contradict directly or indirectly with Lead Forensics’ own terms or materials.
6.3.12 Agree on any User Subscription Term of less than 12 months duration without the written consent of the Supplier.
6.4 Lead Forensics shall remain the owner of all IPRS in the Services. Lead Forensics does not grant the Reseller any IPRS in respect of the Services or any related content or materials, unless expressly provided in this Agreement.
7. CONFIDENTIALITY
7.1 Each party will only use Confidential Information for the sole purposes of enjoying its rights and complying with its obligations under this Agreement. Each party will keep all Confidential Information strictly confidential and not disclose any part of any Confidential Information.
7.2 The obligations of confidentiality in this clause 7 will not apply to Confidential Information to the extent that it:
7.2.1 Is in the public domain (other than as a result of a breach of this clause 7 or any third party’s breach of a duty of confidentiality owed in respect of that Confidential Information);
7.2.2 It is already in the receiving party’s possession (other than as a result of a third party’s breach of a duty of confidentiality owed in respect of that Confidential Information);
7.2.3 Is required to be disclosed by law or an order of a court of competent jurisdiction.
7.3 The Reseller acknowledges that details of the Service, including documentation and the results of any performance tests of the Service, constitute the Supplier’s Confidential Information.
7.4 The obligations of confidentiality under this clause 7 will continue beyond the Term until such time as the information enters the public domain other than through the fault of the receiving party.
8. DATA PROTECTION
8.1 Tracking code:
8.1.1 The Reseller is responsible for data protection compliance with DP Laws regarding their use of the product, the data, or portions thereof during any trial period.
8.1.2 The Reseller is responsible for ensuring that all applicable compliance and regulatory requirements in accordance with all applicable DP Laws are in place between all the relevant Parties. The Reseller serves as the Data Processor, the End User is the Data Controller, and the Supplier acts as the sub-processor.
8.1.3 The Reseller is solely responsible for ensuring that the tracking code is removed from the End User’s website if the trial does not progress.
8.2 Post-Trial:
8.2.1 The Reseller must process data only on documented instructions from the data controller (i.e. the End User).
8.2.2 The Reseller must implement Technical and Organisational Measures to protect the personal data.
8.2.3 The Reseller is not authorised to engage third parties directly in the processing of personal data.
8.2.4 The Reseller shall warrant and represent that it will ensure the processing terms as provided in the Data Processing Agreement (DPA) https://www.leadforensics.com/data-processing-agreement-v7-1/ are in place between the Reseller and the End User. When we issue an update to this Agreement, the Reseller must make an immediate update to their customers.
8.2.5 Lead Forensics will update the Data Processing Agreement from time to time and notify the Reseller. The Reseller is to update the DPA Update Notification – Lead Forensics, or Lead Forensics will use the Reseller authorised signatory to communicate updates.
8.2.6 If the Reseller places the Lead Forensics tracking code on its own website, the DPA in 8.2.4 shall apply between the parties.
8.2.7 Lead Forensics does not implement DPA terms with the End User.
8.2.8 If the Reseller has any queries related to the processing provided to the End User, it shall contact [email protected].
9. TERM AND TERMINATION
9.1 This Agreement shall commence on the Start Date and remain in force for the Initial Term. At the end of the Initial Term, the Agreement shall automatically renew for successive periods each of a duration equal to the Initial Term as stated in the Commercial Terms, excluding any free-of-charge period (each a “Renewal Term“).
9.1.1 At the start of each Renewal Term, the Fees will increase by 10%.
9.1.2 Furthermore, if the website traffic level on the domain(s) disclosed in the Commercial Terms (and any associated amendments) increases by more than 20% over the current daily average traffic level during the trial period, Lead Forensics reserves the right to amend the Fees at the start of any Renewal Term in proportion to the increase in website traffic. Any such increase will be communicated to the Reseller no less than one month prior to the renewal date.
9.2 Either party may terminate this Agreement if:
9.2.1 At the end of the Initial Term or the then-current Renewal Term by providing the other party with at least 90 days’ prior written notice. Such notice should be provided by the Customer to [email protected] or
9.2.2 Within thirty (30) days of the Supplier becoming aware of a change in control of the Reseller within the meaning of Section 1124 of the Corporation Tax Act 2010 and giving written notice to the Reseller to terminate.
9.3 Either party may terminate this Agreement immediately by giving written notice if:
9.3.1 The other party is in material breach of this Agreement, and if remediable, fails to remedy such breach within 30 days of a written request to do so; or
9.3.2 If the other party ceases trading (or threatens to cease trading); is subject to an order for winding up; has an administrator or liquidator appointed (or such appointment is entitled or is requested in good faith); is the subject of a bankruptcy petition or order; becomes insolvent; is incapable of paying its debts as they fall due; makes any arrangement with its creditors for the payment of its debts.
9.4 Upon termination of this Agreement for any reason:
9.4.1 The Reseller shall cease the use of the Services;
9.4.2 Provisions of this Agreement which are either expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, and any accrued rights and remedies, shall remain in full force and effect notwithstanding such termination.
9.5 In the event that the Reseller undergoes a change of ownership or control, whether through merger, acquisition, sale of all or substantially all of its assets, or any other transaction resulting in a change in the controlling in interest of the Reseller, Lead Forensics shall have the right, at its sole discretion, to terminate this Agreement.
9.6 Each End User Subscription Term may be terminated by notice in writing by either party to the other no less than ninety (90) days before the expiry of each anniversary of its activation date.
10. WARRANTIES
10.1 During the Term, each of the parties warrants to the other that:
10.1.1 It has full power and authority to enter into this Agreement and that it holds all licences and approvals necessary for the performance of its obligations under this Agreement; and
10.1.2 It will perform its obligations under this Agreement in accordance with all applicable laws and using reasonable skill and care.
10.2 Except as expressly provided in this section 9, the Services, their use and the results of such use are provided “as is” to the fullest extent permitted by law, and Lead Forensics makes no representations or warranties of any kind, whether express or implied (either in fact or by operation of law), with respect to the Services provided pursuant to this Agreement. Lead Forensics expressly disclaims all other warranties or conditions, including without limitation, warranties of merchantability or fitness for a particular purpose, all warranties arising from conduct, course of dealing or custom of trade, and all warranties of title and non-infringement.
11. LIABILITY
11.1 Except with respect to liability arising from death or personal injury caused by a party, or the fraud, fraudulent misrepresentation or fraudulent misstatements of a party, (a) neither party will be liable to the other for loss of profits, business, goodwill, anticipated savings, goods, contract, use or data, or for any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, and (b) the total liability of Lead Forensics to the Reseller whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Agreement will be limited to the total monies actually received by Lead Forensics from the Reseller under this Agreement.
11.2 The Reseller shall defend, indemnify and hold harmless Lead Forensics against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Reseller’s and any Authorised User’s indirect, incidental, or consequential damages arising out of related to this Agreement and/or Documentation, provided that:
11.2.1 The Reseller is given prompt notice of any such claim;
11.2.2 The Supplier provides reasonable co-operation to the Reseller in the defence and settlement of such claim, at the Reseller’s expense; and
11.2.3 The Reseller is given sole authority to defend or settle the claim.
12. GENERAL
12.1 Lead Forensics may make amendments to this Agreement from time to time, provided that such amendments are notified to the Reseller in writing (“Amendment Notice”). Unless the Reseller notifies Lead Forensics in writing within 21 days of the date of the Amendment Notice that such changes are not accepted by the Reseller, the proposed changes will be deemed accepted by the Reseller. For the purposes of this clause, “in writing” shall be via email to the Reseller’s notifications email address as stated in this order form. It is the Reseller‘s responsibility to monitor this email account, and if they wish to change this email account, they may do so by emailing [email protected]. No other representations or conversations form part of this contract.
12.2 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach. Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
12.3 The Reseller is forbidden to recruit any of the Lead Forensics employees within 12 months of the end of this agreement. The Reseller is also forbidden to employ any services of any of Lead Forensics’ employees or former employees within 12 months of the end of this agreement, even if available indirectly of Lead Forensics.
12.4 If a clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).
12.5 Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered by email, delivered personally, sent by registered mail, for the attention of the relevant person, and to the relevant address or email address. A notice delivered by hand shall be deemed to have been received when delivered (or if delivered outside business hours, at 9 a.m. on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received 2 business days after posting. A notice provided by email shall be deemed to have been received at the time of transmission.
12.6 Lead Forensics shall not be in breach of this Agreement nor liable for any failure or delay to perform its obligations under this Agreement if that failure or delay is a result of a Force Majeure Event (whether or not reasonably foreseeable at the time of entering into this Agreement) making it impractical for Lead Forensics to perform its obligations. Force Majeure Event means an event beyond the reasonable control of Lead Forensics including but not limited to strikes; lock-outs, or other industrial disputes (whether involving the workforce of or any other party); internet outages; communications outages; failure of a utility service or transport network; act of God; war; riot; civil commotion; malicious damage; compliance with any law or governmental order or World Health Organisation rule, decision, regulation, guidance, recommendation, or direction; accident; breakdown of plant or machinery; fire; flood; storm; disease; epidemic; pandemic; or default of suppliers or subcontractors.
12.7 The Reseller shall not assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement, without the prior written consent of Lead Forensics. Lead Forensics may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
12.8 This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
12.9 This Agreement will be governed by and construed in accordance with the laws of England and Wales, and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
ANNEXE 2 – ORDER FORM
Click this link to access the Lead Forensics Reseller Agreement Order Form.
ANNEXE 3 – SERVICES
1. Lead Forensics will provide an online tracking and reporting solution to the Reseller’s End User which includes:
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- Business names and details of matchable web traffic to include the Location, Website Address, Telephone Number
- Time and date of the website visit, Page viewed by the business visitor
- Ability to assign these businesses to users set up by the Authorised User
- Multiple reporting functions based on company size.
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2. For clarification: information can only be provided for businesses that Lead Forensics holds business information on their database, and information will only be provided where available.
3. The Reseller will be able to add unlimited users to the online tracking and reporting solution.
4. The Reseller will be able to access product support via a Client Success Manager.
SERVICE LEVEL AGREEMENT (“SLA”)
1. This SLA applies to the Services provided by Lead Forensics to the Reseller’s End User.
2. Service Commitment: The Services will be available with a monthly uptime percentage of at least 99% (on the basis of twenty-four hours a day, seven days a week), subject to the exclusions set out in paragraph 3.
3. Service Commitment Exclusions: The service commitment set out in paragraph 2 does not apply to any unavailability, suspension or termination of the Services or any performance issues:
3.1 caused by scheduled maintenance of which Lead Forensics provided reasonable written notice (email sufficient);
3.2 caused by factors outside of Lead Forensics’ reasonable control, including a Force Majeure Event and internet access issues;
3.3 that result from any actions or inactions of the Reseller or any other third party; or
3.4 that result from the equipment, software or other technology of the Reseller or any third party.
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