Advertiser Terms and Conditions
This Master Marketing Services Agreement (“Agreement”), together with the current applicable Insertion Order(s) (each an “Order”) entered into on the date and year specified in the Order between InsideUp, Inc., a Delaware Corporation located at 8880 Rio San Diego Drive, Suite 800 San Diego, CA 92108 (“InsideUp”), and Company (”You”, “Your”, “Yourself” or “Advertiser”) as specified in the Order, govern every aspect of the marketing services (“Services”) provided by InsideUp which include the generation of lead(s) (“Lead(s)”) that meet the requirements as specified in the Order.
Each Order will specify 1) the Services Category (“Category”) pertinent to the Advertiser being promoted by InsideUp, 2) a budget (either a monthly budget or a campaign budget), and 3) the qualification criteria using demographicand firmographic parameters.InsideUpofferings (as specifically defined in Table #1 entitled “Marketing Program Specifications”) include Marketing Qualified Leads (MQL), Sales Qualified Leads (SQL) and Highly Qualified Leads (HQL). Each Order will specify a price and quantity associated with each type of Lead. InsideUp has the discretion to provide Advertiser with quantities that are within 10% (more or less) of the quantities specified in the Order.
TABLE #1: Marketing Program Specifications
|Meets Campaign Target||⃝||⃝||⃝|
|Involved in Decision-Making||⃝||⃝||⃝|
|Interested in Receiving Information||⃝||⃝||⃝|
|Timeframe for Making a Decision||12+ Months||6-12 Months||0-6 Months|
|Interested in Talking to Sales Rep||⃝||⃝|
|Shared Existing Vendor Relationship||⃝|
|Current Issues/Future Needs||⃝|
|Date/Time Sales Rep Follow Up||⃝|
The Agreement also governs theuse of the www.insideup.com website (and all other InsideUp-branded websites) (“InsideUp Websites”) and all of the services, information and other offerings available at InsideUp Websites (taken together, the “System”). The System is owned and operated by InsideUp. Through the System, InsideUp collects information about a business contact (“Lead(s)”) using a Request-For-Quote Form (“Form”) or by talking to Lead and sells that information to the Advertiser. Leads are provided as exclusive Leads (“Exclusive”) to only one Advertiser. The System is offered subject to Your acceptance, without modification, of all of the terms and conditions contained herein and all other operating rules, policies and procedures (collectively, the “Agreement”) that may be published from time to time on InsideUp Websites.
BY REGISTERING AS ANADVERTISER WITH THE SYSTEM OR BY SIGNING AN ORDER, YOU 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 ANADVERTISER 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 Advertiser account(s) (each, an “Account”). YourOrders may be placed in the System; and InsideUp will fill YourOrder using our Marketing Campaign(s) (“Campaign(s)”) 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 anAdvertiser (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 Advertiser will not distribute or re-sell to any third party any Lead provided to You by InsideUp through the System. Furthermore,Advertiser will use any Lead provided to You by InsideUp solely for the solicitation and sale, by You, directly to an end-user business, of those products or services as requested by them and as represented in Orders You have placed in the System.
2. Lead Delivery and Lead Contact Leads provided by InsideUp through the System will contain the following information: name, job title, company, company size, industry classification, address, state, phone number, and e-mail address in addition to specific information related to the Order. InsideUp will make a best effort to find the right email address but cannot guarantee that the e-mail address will be valid. Advertiser agrees to make reasonable efforts to respond to every Lead within two (2) business days. Each Lead provided to Advertiser will be an Exclusive Lead and meet the requirements as specified by the Order. InsideUp’s guarantee of Lead delivery is limited to posting Leads to Account. You will be provided online access to YourAccount 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 monitor the receipt ofYour 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 Advertiser’s email servers or internet service provider to deliver the Lead. Lead delivery cannot be paused for any reason nor can there be an arbitrary limit set on the number of Leads delivered per day.
InsideUp is also
not responsible, if Advertiser has opted for InsideUp’s direct post service
(“Direct Post”), for any failure to receive a Lead posted to Advertiser’s
CRM or MAP system. You agree that the delivery of Leads to Your Account shall
be deemed to be proof of usage of our Services irrespective of whether or not You
pursue a Lead. Advertiser shall contact each Lead using the information provided
on the applicable Form. Each Form will only be used for such purposes.
You agree to keep Your Account and payment information (such as a change in billing contact, address, credit card or debit card number, or expiration date) current, complete and accurateand 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 with 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 (either directly or indirectly):
(i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms from 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, if any,either expressly made available by InsideUp 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, as determined by InsideUp, on the InsideUp Websites, the System, or InsideUp’s infrastructure.
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 (“Payment Plan”).
Upon signing of an InsideUp Insertion Order, InsideUp will bill Advertiser 50% of the initial Order amount, as a deposit, before any new Campaign is launched for Advertiser. Billing will be monthly for Leads deliveredand payments will be due 30 days after receipt of invoice. Advertiser will not be billed until charges for Leads actually delivered from the start of the Campaign exceeds the amount of the initial deposit. Advertiser can set either a monthly budget (“Monthly Budget”) or a total budget (“Total Budget”). A Monthly Budget is set on a calendar month basis and is not based on either the date when the Account was initially setup or when the Agreement was signed. InsideUp guarantees that it will not exceed the Monthly Budget as specified in the Order but cannot guarantee that it will always deliver Leads to meet the Monthly Budget. You are only charged for Leads that are actually delivered minus any approved credits (“Credit(s)”). You agree that InsideUp has the right to assign its accounts receivable monies payable under the Payment Plan to a third-party financing company to whom any and all payments, including electronic payments of any kind, must be made. You will receive advance notification of such assignment. AsYou become indebted to InsideUp (when invoiced), any and all payments, including electronic payments of any kind, will be made payable to the applicable third-party company.
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 made 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 “Credits”section of Your Account on the InsideUp Website. 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 to cause theAdvertiser to be unable to contact the Lead.
(b) the Lead request is a duplicate containing identical contact information to another Lead received from InsideUp in the last thirty (30) days.
(c) the request was not made by the individual whose contact information was provided in the Lead request.
requests must be submitted from the Advertiser’s Account on the InsideUp
Website. Such requests must contain a reason for the refund. Advertiserwill be
notified concerning the approval (or denial) of their Lead return requests via
email within ten (10) business days. All Credits resulting from approved Lead
return request can be viewed in the “Credits” section of YourAccount on the
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 provided for in this Agreement.
The following shall be considered Confidential Information of InsideUp:
(i) the name and other identifying information of any Marketing Partner or Advertiser other than You; and
(ii) any information, including any Lead information, submitted by any Advertiser or Marketing Partner either on the System or on or through the InsideUpWebsites.
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 AdvertiserAccount 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 and anonymized data for quality control and evaluation purposes. The parties to this Agreement 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). Advertiser understands that, during the course of its activities, InsideUp is the controller of personally identifiable data and, as such, must ensure that its data handling methods, procedures and policies are, to the best of its ability, in compliance with the provisions of the General Data Protection Regulation (GDPR) as promulgated by the European Union (EU) and other similar consumer privacy laws that may be subsequently enacted in the US.
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 Materials. 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, by accepting this Agreement on a commercial electronic signature website (e.g., DocuSign) or by submitting an Order and shall last until terminated as set forth herein or as specified in the 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-day notice to the other party unless a minimum term or specific Total Budget is specified in Order. All material changes to the Order will require a 30-day notice. 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 the 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 fromthe indemnifying party’s breach of this Agreement, or otherwise from use of the System. InsideUp and Advertiser reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification byeach other, in which event both parties 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 Marketing 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., 8880 Rio San Diego Drive, Suite 800 San Diego, CA 92108, 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 a party to a joint venture 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.