Advertiser Terms and Conditions
BY REGISTERING AS A LEAD BUYER WITH THE SYSTEM OR SIGNING AN INSERTION ORDER ("ORDER"), YOU ("YOU", "YOUR", OR "LEAD BUYER") AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT REGISTER AS A LEAD BUYER OR SIGN AN ORDER.
InsideUp may refuse to allow any person or entity to register for the System and may change its eligibility criteria, at any time, in its sole discretion.
1. Use of the System During the term of this Agreement, with terms specified in your Order and subject to your compliance with all the terms and conditions hereof, you are authorized to access the System solely to place orders for Leads and manage your InsideUp Lead Buyer account(s) (each an "Account"). Your orders may be placed in the System; and InsideUp will fill your order using our Marketing Campaigns ("Campaigns") or Marketing Partners ("Partners"), subject to lead availability. You represent, warrant and covenant that all information you provide, whether on behalf of yourself or other third parties, for the purpose of enrolling as an Lead Buyer (i.e. creating an Account) will be to the best of your knowledge accurate, complete and current at all times and that, in the case of third party information you provide, that you are duly authorized by such third parties to provide such information. You further represent and covenant that you will not distribute or re-sell to any third party any Lead purchased on the System and that you will use any Lead purchased by you solely for the solicitation and sale by you of those products or services directly to end user business as requested in their lead submission and as represented in orders placed in the System.
2. Lead Delivery and Lead Contact Leads provided by InsideUp through the System will contain the following information: name, title, company, address, phone number, and e-mail address in addition to specific information related to InsideUp's "Business Category" InsideUp cannot guarantee that the e-mail address is valid. Lead Buyer agrees to respond to make reasonable efforts to respond to every Lead within two (2) business days. Each provided to Lead Buyer will be a Shared Lead unless an Exclusive Lead is specified in Order. InsideUp guarantee of lead delivery is limited to posting leads to Lead Buyer Account. You will be provided online access to your Lead Buyer Account within five (5) business days of submitting your Order. It is your responsibility to ensure that you are able to log into your Account to verify your Leads. InsideUp is not responsible for any failure to receive a completed Lead via email due to spam filters, address-book filters, filters imposed by internet service providers, or failure on the part of Lead Buyer's email servers or internet service provider to deliver the Lead. InsideUp is also not responsible for any failure to receive a Lead posted to Lead Buyer CRM system if Lead Buyer has opted for InsideUp's direct post service ("Direct Post"). You agree that the delivery of leads to your Lead Buyer Account shall be deemed to be proof of usage of our services irrespective of whether or not you pursue a Lead. Lead Buyer shall contact each Lead using the information on the applicable Form. Each Form will only be used for such purposes.
You agree to keep your Account and payment information current, complete and accurate (such as a change in billing address, credit card or debit card number, or expiration date), and to promptly notify InsideUp if any of your payment information is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security (with respect to your Account or relevant payment information), such as the unauthorized disclosure or use of your user name or password. If you fail to provide InsideUp any of the foregoing information, you agree that InsideUp may continue charging your Account for any use of the System unless you have terminated your participation in the System as set forth below.
3. Restrictions. You shall not (directly or indirectly):
(i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the System, except to the limited extent applicable laws specifically prohibit such restriction,
(ii) modify, translate, or otherwise create derivative works of any part of the System, or
(iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive here under.
Your right to access your Account (including, without limitation, any login or other access information) is personal to you, is non-transferable and non-assignable, and is subject to any limits established by InsideUp. You agree that you will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage your Account with InsideUp or to monitor or copy the InsideUp Websites or the content contained therein except those automated means expressly made available by InsideUp, if any, or authorized in advance and in writing by InsideUp. You agree that you will not interfere or attempt to interfere with the proper working of the InsideUp Websites or the System. Without limitation to the foregoing, you further agree that you will not take any action that imposes an unreasonable or disproportionately large load on the InsideUp Websites, the System, or InsideUp's infrastructure as determined by InsideUp.
4.Budget, Payments and Billing. You agree to pay InsideUp for all charges to your Account, in accordance with this Agreement and the InsideUp payment plan you select ("Payment Plans"). InsideUp offers an Automatic Payment plan which allows you your credit card to be automatically charged every time balance goes below 20% of you last deposit or $100 (whichever is greater). InsideUp reserves the right to change its Payment Plans at any time. You hereby authorize InsideUp to charge your credit card, charge card, debit card or financial institution account (hereinafter your "Payment Method") for all charges to your Account pursuant to a Payment Plan. Lead Buyers can set a monthly budget. Monthly budgets are set on a calendar month basis, and are not based on account setup or agreement date. InsideUp guarantees that it will not exceed the Monthly Budget as specified in the Order but cannot guarantee that it will always deliver lead to meet the Budget. You are only charged for leads that are actually delivered minus credits.
The per installment charge specified in the Order is what is charged to your credit card when your balance is low, and is separate from your monthly budget. You agree, if using the Automated Payment Plan, that InsideUp has the right to accumulate your leads in our system but not deliver the leads if your credit card cannot be charged to meet your monthly budget commitment. You authorize InsideUp to charge you for any such leads to your credit card if the card fails initially but then can be charged to meet the requirement of your Order.
A deposit will be made to your account on the first of the month for amount to provide you with sufficient balance to meet your monthly budget if you have been accepted for our Billing Plan, If your monthly spend historically has been less than your monthly budget, then the amount deposited and invoiced will be your last month spend plus a discretionary amount but this amount will never exceed your monthly budget. The payment is due upon invoice receipt. If payment is not received within 30 days, then InsideUp has the right to hold the delivery of leads until payment is made. The leads will continue to accumulate in our system but only be delivered when payment is received.
You must submit any claims or disputes you may have with respect to any charge to your Account in writing to InsideUp within 30 days of such charge, otherwise such claim or dispute will be waived, and such charge will be final and not subject to challenge. If credits have been applied in return for your opening of an Account, InsideUp reserves the right to terminate such credits at any time. All returns of Leads shall be for credit only, not a refund. To be considered for credit, requests for returns must be submitted within five (5) business days of the Lead being posted to your Account. All credits for Leads can be viewed in the Credit Section of your Account. Acceptable reasons for returning a Lead include:
(a) the contact information such as the phone number provided in the Lead request proves to be inaccurate enough for Lead Buyer to be able to contact the lead.
(b) the Lead request is a duplicate containing identical contact information to another Lead received from Company in the last thirty (30) days.
(c) ) the request was not made by the individual whose contact information was provided in the Lead request. Lead return requests must be submitted from their Account. Such requests must contain reason for refund. Lead Buyers will be notified about the granting (or denial) of their Lead return requests via email within ten (5.10) business days. All credits for Leads can be viewed in the Credit section of the Lead Buyer account.
5. Confidentiality. During the term of this Agreement, each party (a "Disclosing Party") may provide the other party (a "Receiving Party") with confidential and/or proprietary materials and information ("Confidential Information"). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as "Confidential" or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated here under.
The obligations in this Section 5 shall not apply to any information that
(i) is made generally available to the public without breach of this Agreement,
(ii) is developed by the Receiving Party independently from the Confidential Information,
(iii) is disclosed to Receiving Party by a third party without restriction, or
(iv) was in the Receiving Party's lawful possession prior to the disclosure and was not obtained by the Receiving Party, either directly or indirectly, from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party's request, Receiving Party shall return to Disclosing Party all Disclosing Party's Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party's Confidential Information as this Agreement.
The following shall be considered Confidential Information of InsideUp:
(i) the name and other identifying information of any Marketing Partner or Lead Buyer other than you; and
(ii) any information, including any Lead information submitted by any Lead Buyer or Marketing Partner on the System or on or through the InsideUp Websites.
The information that you supply to establish and maintain your Account, whether on behalf of yourself or on behalf of a third party, shall be your Confidential Information, and you agree that InsideUp may, but is not obligated to, provide your email address(es) and basic Lead Buyer Account detail (including but not limited to your postal address, phone number, and fax number) to Marketing Partners. However, InsideUp will not disclose to any third party information that InsideUp receives from you regarding the quality or performance of Leads obtained by you through the System, except as aggregated data for quality control and evaluation purposes. The parties acknowledge that the harm caused by the wrongful disclosure of Confidential Information will be difficult, if not impossible, to assess on a monetary basis alone, and that legal damages may not be sufficient compensation for such wrongful disclosure. Therefore, either party may enforce its rights under this Section by equitable means, including, but not limited to, injunctive relief, in addition to any other remedies to which it is otherwise entitled.
6. Representations and Warranties. You represent and warrant that you have sufficient authority, including all necessary authority, approvals, and waivers by third parties on whose behalf you may be acting, to enter into this Agreement. You represent and warrant that your use of InsideUp's services is solely for lawful commercial and business purposes. You further represent and warrant that all information you provide, whether on behalf of yourself or other third parties, in connection with this Agreement (e.g. through the enrollment process) and on your website is, and will be updated to remain, current and accurate to the best of your knowledge. In addition, you represent and warrant that all of your activities in connection with this Agreement shall comply with applicable laws and regulation (including, without limitation, that you will not engage in telemarketing activities that are in violation of the Federal CAN-SPAM Act, the Do Not Call Implementation Act, or the Telemarketing and Business Fraud and Abuse Prevention Act).
7. Ownership. No Challenge to Intellectual Property Rights. You expressly acknowledge and agree that, as between you and InsideUp, InsideUp owns all right, title, and interest (including intellectual property rights throughout the world) in and to the System, the InsideUp Websites, and any software programs or tools, utilities, technology, inventions, devices, specifications, documentation, ideas, concepts, know-how, processes, methodologies, techniques, and materials of any kind used or developed by (or on behalf of) InsideUp in connection with the InsideUp Websites or the System (collectively "InsideUp Materials"). Except as expressly authorized by InsideUp in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any InsideUp Matters. You covenant that you will not assert any rights in, or challenge InsideUp's ownership of, any InsideUp Materials. InsideUp may terminate this Agreement without notice if you initiate any proceeding with the purpose or effect of challenging InsideUp's ownership interest in the InsideUp Materials.
8. Term. This Agreement shall commence upon your indication that you have accepted this Agreement by 'clicking through' the acceptance button on the InsideUp Website or by submitting an InsideUp Insertion Order ("Insertion Order"), and shall last until terminated as set forth herein or as specified in the Insertion Order.
9. Termination; Suspension. Either party may terminate this Agreement in the event the other party breaches this Agreement and fails to cure such breach within 30 days from receipt of notice thereof. This Agreement may also be terminated by either party, for any or no reason, upon 30 days notice to the other party unless a minimum term is specified in Order. You need to provide a termination notice at least 30 days prior to the end date of the minimum term specified in the Order for agreement to terminate by end of minimum term period. The start date to meet minimum term requirements will be the start date specified in Order or the date when the first lead is delivered, whichever is later. This Agreement may be terminated by InsideUp in the event you become insolvent or generally unable to pay your debts as they become due, or become the subject of a bankruptcy, conservatorship, receivership, or similar proceeding, or make a general assignment for the benefit of creditors. In addition, your Account may be closed, and InsideUp may terminate this Agreement, if your Account has not been logged into and/or there have been no transactions credited to your Account for any 90 day period. Your Account may be temporarily deactivated as a result of any material breach of this Agreement pending termination or cure of your breach. If you are in breach of this Agreement, InsideUp reserves the right to suspend your Account without notice (until such time as InsideUp is satisfied the breach has been cured). Upon termination of this Agreement, your right to access or otherwise use the System shall immediately termination and the following provisions shall survive termination of this Agreement: 3 and 6 through 17 (inclusive).
10. Indemnification. Either party shall defend, indemnify, and hold harmless the other party, its affiliates, and each of its, and its affiliates' employees, contractors, directors, suppliers, and representatives from all liabilities, damages, losses, claims, and expenses, including reasonable attorneys' fees, that arise from breach of this Agreement, or otherwise from use of the System. InsideUp reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with InsideUp in asserting any available defenses.
11. Warranty Disclaimer. THE SYSTEM (INCLUDING, WITHOUT LIMITATION, ALL CONTENT AND INFORMATION AVAILABLE THROUGH THE SYSTEM) IS PROVIDED "AS IS" AND "AS AVAILABLE" AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. INSIDEUP, AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT:
(A) THE SYSTEM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION;
(B) ANY DEFECTS OR ERRORS WILL BE CORRECTED;
(C) THE SYSTEM IS FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS;
(D) THE RESULTS OF USING THE SYSTEM WILL MEET YOUR REQUIREMENTS.
12. Limitation of Liability. NEITHER INSIDEUP NOR ANY OF ITS SUPPLIERS, LICENSORS, OR PARTNERS SHALL BE LIABLE UNDER THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR
(I) ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORSEEABLE,
(II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES,
(III) ANY AMOUNTS THAT IN THE AGGREGATE EXCEED THE FEES PAID BY YOU TO INSIDEUP HEREUNDER DURING THE 6 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES, OR
(IV) ANY MATTERS BEYOND THE REASONABLE CONTROL OF INSIDEUP. INSIDEUP SHALL NOT BE LIABLE FOR THE VIOLATION BY ANY MARKETING PARTNER OR OTHER THIRD PARTY OF ANY "ANTI-SPAM," "DO NOT CALL," OR OTHER APPLICABLE STATE LAW OR REGULATION.
13. Dispute Resolution. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Diego, CA using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Southern District of California.
14. Press Releases. Either party shall not issue any press release or other public statement regarding this Agreement InsideUp, and/or other parties affiliates or partners without the prior written consent of InsideUp.
15. Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, failure, delay or breakdown of the System, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
16. Notices. Except as provided elsewhere in this Agreement, both parties must send all notices relating to this Agreement: (a) for InsideUp, via registered mail, return receipt requested or via an internationally recognized express mail carrier to InsideUp, Inc., 7887 Dunbrook Suite A, San Diego, CA 92126, and, (b) for you, at the email address listed on your Account, effective upon sending as long as InsideUp does not receive an error message regarding the delivery.
17. Miscellaneous.The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. This Agreement is governed by the laws of the State of California, except for its conflict of law provisions. Neither party shall assign this agreement without the consent of the other party; provided that, either party may, without such consent, assign this Agreement to a successor to substantially all of its business or assets. The parties further agree that if any portion of this Agreement is illegal or unenforceable, such portion(s) shall be limited or excluded from this Agreement to the minimum extent required, and the balance of this Agreement shall remain in full force and effect and enforceable. This Agreement contains the entire understanding of the parties regarding its subject matter and can only be modified or waived by a subsequent written agreement signed by both parties. InsideUp shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by notifying you (which may be via email) of such Change by email. In the event that you do not agree to such Change, you may terminate this Agreement by delivering written notice thereof to InsideUp within ten (10) days from the notice to you of the applicable Change. Your continued use of the System following the expiration of such ten (10) day period will constitute binding acceptance of the applicable Change.
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