Terms and Conditions
By using the Services provided by 360 Leads Inc. (“we” or “us” or “360 Leads”) including, but not limited to Outbound Marketing, Digital Marketing, PR & Content Marketing, Direct Marketing or other lead generation services, lead tracking, nurturing, scoring and any other business services that may be provided from time to time (the “Services”), you are agreeing to these Terms and Conditions.
You also agree that these Terms and Conditions apply to the exclusion of any additional or contradictory terms appearing or referred to in any of your communications to us, other than on our form of client agreement as submitted by you and accepted by us (a “Client Agreement”).
We may revise these Terms and Condition at any time. The revised Terms and Conditions will be effective and binding on you at the time they are posted on our Website (360leads.com).
These Terms and Conditions are between you and 360 Leads, for the purpose of providing the Services as set out above and more specifically on each Client Agreement. These Terms and Conditions and all Client Agreements are collectively referred to as the “Agreement”. In the event of a conflict between these Terms and Conditions and a Client Agreement, the terms of these Terms and Conditions will control.
1. The Agreement will start on the date of the initially executed Client Agreement and upon execution by you shall form a binding contract between 360 Leads and you and shall be non-cancellable by you other than for the provision outlined in paragraph 10 below. 360 Leads reserves the unfettered right to cancel an executed Client Agreement for any reason whatsoever and must provide 60-days notice (“Notice Period”) of its intent to terminate the Client Agreement. 360 Leads shall provide its Services during the Notice Period in accordance with the Client Agreement.
3. We represent and warrant that we own, or have the right to use, all intellectual property rights in and to the Services (including all derivatives and/or improvements). All suggestions, enhancements requests, feedback, recommendations or other input provided by you or any other party relating to the Services will be owned by us, and if we decide it is necessary you will formally assign and take all other reasonable acts necessary to vest us with all ownership rights. Any rights not expressly granted to you in the Agreement are reserved by us.
4. Certain data used in the provision of Services may not be provided to you upon completion of the Services because it is subject to restrictions.
5. You represent and warrant that you own any data, information or material originated, compiled, or submitted to us, by you in the course of using our Services (“Client Data”). We have no ownership rights in or to Client Data. You will use commercially reasonable efforts to ensure the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Client Data provided to us by you (including all derivatives and improvements). Client Data will be considered Client Confidential Information under Section 20 below.
6. You confirm that all Client Data provided to us for use in delivering the Services may be used without any breach of applicable laws. We will have no responsibility with respect to any Client Data provided to us by you. You will indemnify and hold us and the other indemnified parties under Section 17 harmless for any breach or liability related to the use or disclosure of Client Data.
Billing and Payment.
7. You will pay us the fees and costs associated with provision of the Services to be provided in accordance with the Client Agreement. If previously agreed to by each party on annual Client Agreements, you will pay the annual costs associated with the Services to be provided, prior to the start of the year, at a discounted annual payment rate. You understand that there may be an annual modest cost increase effective each January 1st and, if known, the amount of the increase will be supplied to you on request.
8. You will pay all fees in Canadian Dollars or in such other currency as agreed to in writing with us.
9. All sections of the Agreement which by their nature are required or intended to survive completion or termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
10. In the event of a material breach of any Client Agreement by either party, the non-breaching party will have the right to terminate the applicable Client Agreement or all Client Agreements for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach in detail.
11. Any termination by us or you under Section 10 will not relieve you of your payment obligations under the Agreement.
Delivery of Services.
12. We will provide the Services (i) with the skill and care used by members of our industry under substantially similar circumstances, (ii) in accordance with the Agreement, and (ii) in compliance with all applicable laws.
13. We will promptly correct any failure of the Services to conform to the warranties in Section 12. If we cannot correct a failure to conform to the warranties in Section 12 within a reasonable period of time, you may recover the fees (but not the costs) paid to us for the deficient Service. There are no other remedies for a breach of warranty.
14. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 3 AND 12, WE DO NOT MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND WE EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
15. Any changes that you would like to make to a Client Agreement will likely require a change in price and completion date. All changes to a Client Agreement must be agreed to in writing.
16. You will be responsible for approving all content, creative or otherwise, utilized in any lead generation campaign. You will ensure that each element of content and the content as a whole, its distribution by any media or supplier, and its publication by any party, (i) will not be libelous or slanderous, (ii) will not constitute a trademark or copyright infringement, and (iii) will, in all respects, comply with all applicable federal, state and local laws, and with all such standards of conduct, ethics and business practices as may from time to time be applicable.
17. Both during and after the Term, you will indemnify and save us, our officers, directors, employees, contractors, representatives and agents harmless from and against any and all liabilities, losses, suits, claims, demands, costs, fines, penalties, reasonable legal fees and disbursements, and actions of any kind or nature whatsoever which we or they may become liable for, or may suffer by reason of, any breach, default, violation or non performance on the part of you, or any of your officers, directors, employees, contractors, representative or agents under the terms of the Agreement or under any laws.
18. You acknowledge and understand that we may record telephone conversations, which are part of the Services provided under this Agreement. You indemnify 360 Leads for any liability, third party or otherwise attributed to such recordings.
Limitation of Liability.
19. EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR YOUR OBLIGATION TO PAY FOR THE SERVICES, NEITHER PARTY WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS, LOST PROFIT (WHETHER DIRECT OR CONSEQUENTIAL); (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $50,000.00 OR THE FEES PAID BY YOU UNDER THE AGREEMENT IN THE PROCEEDING 3 MONTHS.
20. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (“Confidential Information” of the Disclosing Party). Such information includes, without limitation, Client Data, call lists, and the nature and performance of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in the Agreement) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to Confidential Information after five (5) years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed by law provided, however, that Receiving Party will first have given notice to the Disclosing Party and will give the Disclosing Party a reasonable opportunity to interpose an objection or seek to obtain a protective order requiring that the Confidential Information and/or documents so disclosed be used only for the purposes for which the original order was issued. Any information covered by the original order (as may be modified) will be disclosed only for the purposes of complying with the order and will otherwise be considered to be Confidential Information under the Agreement for all other purposes. Client Data will be destroyed, and, upon your request, and we will certify to such destruction in writing.
21. We may give notice to you by written communication sent by first class mail or pre-paid post to your address on record in our account information or by email to the email address set out in the Client Agreement. If you have a dispute with us, want to provide a notice under the Agreement, or become subject to insolvency or other similar legal proceedings, you will promptly send written notice to us at [email protected].
22. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services provided (although payment due dates will be extended, as appropriate).
23. The Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, without reference to its or any other jurisdictions conflicts of laws provisions. Each party irrevocably attorns to the jurisdiction of the Courts of the Province of Ontario. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY, EXCEPT WHERE WAIVER IS PROHIBITED BY APPLICABLE LAW.
24. You may not assign the Agreement without our written consent.
25. Our rights under the Agreement will inure to the benefit of our successors or assigns.
26. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for non-payment, breach of confidential information covenants or breach of either party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
27. The Agreement represents the parties’ entire understanding relating to the Services, and supersedes all prior proposals or agreements, whether oral or in writing. The exchange of a fully executed Client Agreement by fax or electronic signature will be sufficient to bind the parties to these Terms and Conditions and the Client Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
28. Each party is an independent contractor. No fiduciary, joint venture, partnership or agency relationship exists between us and you as a result of the Agreement or your use of the Services.
If you have any questions or concerns relating to the Terms and Conditions or to any of our ancillary documents, please contact us via e-mail at [email protected].