ActiveDEMAND SOFTWARE AS A SERVICE AGREEMENT

Last Modified: March 5, 2023.

READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE COMPLETING REGISTRATION. BY SELECTING “I ACCEPT” OR OTHERWISE COMPLETING THE REGISTRATION AND ORDERING THE SOFTWARE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU REPRESENT THAT YOU HAVE THE AUTHORITY AND POWER TO BIND A COMPANY OR LEGAL ENTITY IN THE CASE YOU ENTER THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY. IF YOU DO NOT AGREE TO EACH TERM AND CONDITION OF THIS AGREEMENT DO NOT COMPLETE THE REGISTRATION, AND SELECT “I DECLINE”. YOU MAY NOT USE THESE SERVICES WITHOUT ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND COMPLETING REGISTRATION.

Upon selecting “I Accept” you (the “Subscriber”) and JumpDEMAND Inc. (the “Service Provider”) are bound by this Agreement effective immediately (the “Effective Date”). Service Provider agrees, on a subscription basis specific to the Subscriber, to allow Subscriber access to certain web-hosted inbound marketing applications, tools, platforms, on an online and offline basis as required, developed by Service Provider, and provide access to additional ancillary online and offline products, software, and web hosting as part of Subscriber’s subscription (collectively, the “Solution”). Access to the Solution collectively may be referred to in this Agreement as the “Subscription”.

Article 1 – The Solution.

  1. Direct End-User. On a subscription basis, Subscriber is permitted to access the Solution and Service Provider shall provide additional services necessary for productive use of the Solution, including user identification and password change management, data import and export, monitoring, Technical Support (as defined herein), as further set forth herein.
  2. Agency Usage. If the Subscriber selects and pays the applicable Subscription Fees for Agency Usage, the Solution will permit the Subscriber to have access to certain admin-level features permitting the Subscriber to use the Solution to white-label and resell the Subscriber’s own marketing services to its own end-user clients under the Subscriber’s own branding.

    The Subscriber with access to Agency Usage, shall not, and shall not authorize any third party to: (i) resell the Solution or any other Service Provider IP under the Subscriber’s own branding; (ii) package or bundle the Solution or any other Service Provider IP with elements of other technology and resell that package or bundle as a product or service to others; or (iii) create a new product or service which is based upon or replicates the Solution or any other Service Provider IP, under a new brand name, and sell that product or service to others.

  3. Authorized Users. Service Provider grants Subscriber a renewable, non-exclusive, royalty-free, and worldwide right for any Subscriber employee, contractor, agent, (or in the case of Agency Usage, a client of the Subscriber), or any other individual or entity authorized by Subscriber (each, an “Authorized User”) to access and use the Solution. Other than those limitations within the service package selected by the Subscriber, Authorized Users will have no other limitations on their access or use of the Solution. Subscriber remains responsible for all use of the Service by its Authorized Users.
  4. Pricing. The Solution are provided on a tiered basis, as posted at https://www.activedemand.com/pricing/ (the “Pricing Link”), or as otherwise provided by Service Provider in a customized quote of fees for the Solution exclusively to Subscriber (the “Quote”). The fees provided by Service Provider at the Pricing Link or in the Quote are referred to as the “Subscription Fees”, and are based on the features and Subscriber’s use of the base data storage associated with the service package, as described in the Pricing Link as at the Effective Date or the Quote (referred to as “Database Capacity”).
  5. Upgrades & Downgrades. Subscriber is entitled to upgrade or downgrade (as applicable) the Subscriber’s service package, and adjust the associated Subscription Fee, if the Subscriber provides written notice at least thirty (30) days before the end of the then-current term. If the Subscriber’s use of the Service exceeds the permitted Database Capacity associated with the Subscriber’s current package, then the Subscription Fee will be automatically adjusted for the next billing period, to match the actual Database Capacity used by the Subscriber, and the Subscriber will be responsible for payment of those Subscription Fees.
  6. Exclusion. For greater clarity, the subscription for the Solution does not include customization, integration, training services, consulting services, or professional services, online web-based applications and offline software products, equipment, software, or services that are provided by third parties, interoperate with, or are used in connection with the Solution, and are identified as being provided by third parties (“Third Party Products”).

Article 2 – Control and Location of Services.

The method and means of providing the Solution and related data storage shall be under the exclusive control, discretion, management, and supervision of Service Provider. Except as otherwise specified in this Agreement or agreed upon in writing by the parties hereto, the Solution and related data storage shall be provided solely from within continental United States of America and on data storage devices located therein.

Article 3 – Database Capacity.

The Solution shall include the applicable allocation of Database Capacity. Service Provider shall immediately notify Subscriber when Subscriber has reached eighty percent (80%) of Subscriber’s then-permitted Database Capacity, or has exceeded such capacity. All data shall be stored in databases designated exclusively for Service Provider. Account data shall be stored in a single database, however Service Provider does not guarantee partition and separation between Service Provider’s subscriber’s accounts in respect to the storage of data.

Article 4 – Data Security.

Service Provider utilizes two data security schemes, the operation of which is dictated by the Subscriber’s Subscription, to ensure the security and protection of Subscriber’s Confidential Information (as defined herein).

  1. Under scheme 1 “Basic Security”, Service Provider utilizes HTTPS communication, passwords, and restricted access and application permission management to ensure the security and protection of Subscriber’s Confidential Information.
  2. Under scheme 2, “High Security” Service Provider utilizes HTTPS communication, set account passphrase complexity requirements, passphrase renewal expiration periods and re-use restrictions in addition to application permission management to ensure the security and protection of Subscriber’s Confidential Information.

Service Provider shall take all reasonable industry standard procedures to safeguard Subscriber’s data. Upon termination of this Agreement, Service Provider shall return any stored data to Subscriber within a reasonable time period, subject to professional obligations. In the event Service Provider ceases to carry on business, assigns business, or amalgamates with another corporation, the Subscriber’s data will be returned as provided for above, or, at the election of Subscriber, transferred using acceptable industry standards to the successor.

Article 5 – Changes in Functionality.

Service Provider may modify the Solution from time to time, including but not limited to the adding or deleting of features and functions as Service Provider in its sole discretion may deem necessary or desirable. Nothing in this Agreement shall prohibit Service Provider from making such changes to the Solution, provided that no such change to the Solution shall materially reduce the functionality of the Solution provided to Subscriber during the Subscription Term. Service Provider reserves the right to provide some or all elements of the Solution through use of third party providers in accordance with this Agreement.

Subscriber may subscribe to optional features of the Solution that Service Provider may offer at an additional fee from time to time, as agreed to between the parties, and such added elements of the Service shall, starting with the date on which the parties agree to the addition, be added to the Subscriber’s Subscription Fee payable under this Agreement.

Article 6 – Technical Support.

Service Provider shall provide help and advice through phone support to Authorized Users in respect to the Solution, from 8AM to 5PM Mountain Time, Monday through Friday, excluding Canadian national holidays (the “Technical Support”). Technical Support responses are provided during phone support hours only. Service Provider may provide additional web-based support through an email address or live chat forum. Service Provider attempts to respond to support questions within one business day, and response time shall be measured from the time the issue is logged in Service Provider’s support systems; however, Service Provider is neither obligated to provide, nor guarantees, any specific response time.

For greater clarity, the Technical Support for the Solution does not include advice or help with customization, integration, training services, consulting services, or professional services, online web-based applications and offline software products that are provided by Service Provider or related to Third Party Products, that interoperate with, or are used in connection with the Solution. The Subscription Fee shall be inclusive of the fees for Technical Support.

Article 7 – Integration.

Except for the Technical Support provided under this Agreement, Service Provider is not responsible for integration, configuration, or business process alignment of any of the Solution with Subscriber’s existing or future systems, applications, security features, or networks. Subscriber may purchase integration services from Service Provider at an additional cost set out in the Pricing Link or the Quote on the date integration assistance is requested.

Article 8 – Consulting Services.

Service Provider offers consulting packages to provide training and internet marketing expertise to help Subscriber’s succeed (the “Consulting Services”). Fees for Consulting Services are in addition to Subscription Fees for the Solution and are payable at the start of the engagement. Consulting Services may be customized pursuant to a mutually agreed upon written statement of work provided to the Subscriber upon the earlier of its request or selection of its selection of desired consulting services (each, a “Statement of Work”). Hours/Day(s) purchased as part of a consulting package are non-refundable and expire as set forth in the Order Form but in any case no later than 180 days from purchase. The Consulting Services are provided by Service Provider separate and distinct from the Solution and are not required for Subscriber’s use or enjoyment of the Solution. In the event of any conflict between any term or condition set forth in this Agreement and in a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly agree otherwise in such Statement of Work. Any Statement of Work may be modified or amended only with the written consent of both Service Provider and Subscriber.

Article 9 – Monitoring Rights of Service Provider.

Service Provider shall have no right to conduct an on-premises audit of Subscriber’s compliance with the use of the Solution. However, Service Provider may conduct such remote monitoring of the Subscriber’s use as reasonably required to verify the Subscriber’s compliance with the scope of its access rights and permitted Database Capacity, and may charge the applicable Subscription Fee to bring the Subscriber into compliance with the permitted Database Capacity in accordance with this Agreement.

Article 10 – Subscription Term.

This Agreement is legally binding as of the Effective Date and shall continue for the initial monthly or annual term of the Subscription, as specified in the Subscriber’s service package (the “Initial Term”), until terminated as provided for in this Agreement.

Following the Initial Term and unless otherwise terminated pursuant to this Agreement, the Subscription shall automatically renew for successive monthly or annual terms (as specified in the Subscriber’s service package) (each, a “Renewal Term”), until such time as a party provides the other party with written notice of non-renewal under Article 13 (Termination).

The Initial Term and any Renewal Term are referred to as the “Subscription Term”.

Article 11 – Tracking and Reporting.

Service Provider may provide certain additional services, as it deems appropriate, in its sole discretion, to enable Subscriber to assess the performance of any Campaign. Service Provider may provide any, but not limited to, of the following methods of tracking: (a) Subscriber webpage tracking, which shall include call to action page tracking, webpage page tracking, web event tracking and E-mail tracking; (b) phone tracking; or (c) web tracking and phone tracking which shall include both (a) and (b), these additional services are collectively referred to as the “Tracking Services” and if utilized by the Subscriber, shall be considered part of the Solution and subject to the terms and conditions herein.

Service Provider shall comply with all laws and regulations related to the Tracking Services and personal privacy in the jurisdictions in which Service Provider is incorporated. Service Provider shall have no obligation or liability whatsoever to ensure the Tracking Services comply with any relevant laws, regulations, or codes of conduct of the jurisdictions in which Subscriber utilizes the Tracking Services or any other Solution provided by Service Provider.

Article 12 – Proprietary Rights.

 

  1. Service Provider IP. Subscriber acknowledges that, in the course of accessing the Solution, Subscriber may use software and related processes, instructions, methods, and techniques that have been developed by or for the Service Provider and that the same shall remain the sole and exclusive property of Service Provider; for greater certainty, this also includes any code, images, templates, layouts, typefaces, or any other pre-designed elements and formats made available to Subscriber by Service Provider through the Solution or Consulting Services, together with all associated intellectual property rights (collectively, the “Service Provider IP”, which shall include the Solution).
  2. No License. Except as expressly set forth herein, no license is granted by Service Provider to the Subscriber with respect to the Service Provider’s Confidential Information or Service Provider IP. Nothing in this Agreement shall be construed to grant to Subscriber any ownership or other interest, in the Service Provider’s Confidential Information or Service Provider IP.

The provisions of this Section shall survive the termination of this Agreement.

Article 13 – Termination.

  1. Termination for Convenience. Subscriber may terminate this Agreement if the Subscriber provides written notice to the Service Provider at least thirty (30) days before the end of the then-current term, and if proper notice is given, then termination shall be effective on the first day of the next month. Subscriber agrees to pay in full any fees or amounts owed to Service Provider up to the effective date of termination. Any prepaid amounts are non-refundable.
  2. Non-Renewal. Either party may terminate this Agreement by providing the other party with written notice of non-renewal at least thirty (30) days before the end of the then-current term. Any such termination shall be effective as of the date that would have been the first day of the next Renewal Term. Subscriber agrees to pay in full any fees or amounts owed to Service Provider up to the effective date of termination. Any prepaid amounts are non-refundable.
  3. Termination by Mutual Agreement. Subscriber and Service Provider may terminate this Agreement at any time upon mutual agreement, in writing, to end the Subscription for the Solution. Subscriber agrees to pay in full any fees or amounts owed to Service Provider, for the entire month in which the termination is made effective. Any prepaid amounts are non-refundable.
  4. Termination for Cause. Without limiting the right of a party to immediately terminate this Agreement for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, the non-breaching party may terminate this Agreement for cause as of a date specified in such notice.
  5. Termination for Non-Payment. Service Provider may terminate or suspend Subscriber’s access to all or any part of the Service for cause upon ten (10) days’ notice to Subscriber of non-payment of any amount du