Please carefully read these Terms of Service (the “Agreement“), as it is a legal agreement between you, an individual or legal entity as set forth in the Order Form or online sign-up (“You”), and ActiveProspect, Inc., a Delaware corporation (“ActiveProspect” or “We”), regarding the use and implementation of any ActiveProspect services hosted at http://activeprospect.com, http://leadsbridge.com, or sub-domains thereof, including but not limited to LeadConduit,  TrustedForm and SuppressionList (collectively, the “Services” or individually, a “Service“). By clicking the “I Agree,” or similarly labeled button, or by using the Services, You agree to abide by this Agreement. If You do not agree to this Agreement, then do not indicate acceptance and do not use the Services. If You are an individual, You acknowledge that You are of least 18 years of age. If You agree to this Agreement on behalf of a legal entity, You represent that You have authority to bind that legal entity to this Agreement. Accounts registered by “bots” or other automated methods are not permitted and will be immediately deactivated without notice.

 

DEFINITIONS

“Account” means Your password-protected ActiveProspect account through which You use the Services. An Account is intended to represent the legal entity using the Services

“ActiveProspect Technology” means certain technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information owned or licensed by ActiveProspect. This includes, but is not limited to, the Services.

“Affiliate” means any legal entity that controls, is controlled by, or is under common control with You. “Control” means the direct or indirect ownership of more than fifty percent (50%) of the voting securities of an entity or possession of the right to vote more than fifty percent (50%) of the voting interest in the ordinary direction of the entity’s affairs.

“CCPA” means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General. Terms defined in the CCPA, including personal information and business purposes, carry the same meaning in this Agreement.

“Contracted Business Purposes” means the services described in this Agreement.

“Your Content and Data” means any electronic data, information, or material captured and stored by the Services as a result of Your use of the Service. Your Content and Data includes but is not limited to information pertaining to Leads that may contain individual, personally identifiable information (“PII”).

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Lead” means a data record pertaining to an individual or entity, or other contact data and information.

“Order Form” means a written document signed by You and ActiveProspect, or an electronic form submitted by You and accepted by ActiveProspect, which identifies the ActiveProspect Service(s) You have agreed to purchase and the corresponding fees.

“Sensitive Data” is data that, if disclosed without authorization, could result in significant economic, reputational, or privacy harm to the data subject, as defined in applicable data privacy rules and regulations. Examples of Sensitive Data include, without limitation, credit card numbers, bank account numbers, social security numbers, passwords, security challenge information, sensitive health information classified as confidential under the Health Insurance Portability and Accountability Act (“HIPAA”), and drivers license numbers. 

“Third-Party Services” means services, materials, and information, in any form or medium, that are not proprietary to ActiveProspect, including any third-party: (a) documents, data, content or specifications; (b) software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

“User” means the individual user login associated with an Account. You may have multiple Users within an Account, provided that all Users agree to abide by this Agreement. A User may be associated with more than one Account, but User must abide by the respective Agreement(s) governing each Account.

 

PRODUCT AND SERVICE DESCRIPTIONS

LeadsBridge: LeadsBridge is a web-based marketing integration platform with which You may sync Leads, audiences and transactions, from and to different platforms (e.g. Facebook, Google, LinkedIn), with various Customer Relationship Management (“CRM”) software, e-commerce platforms, e-mail marketing software or, in general, any company business assets.  LeadsBridge’s distinguishing feature is that it allows users to directly transfer Leads from a source (e.g. an advertising platform) to their respective CRM and to directly transfer audiences and conversions from a source (e.g. CRM) to an advertising platform. The software gives users a single point of management for Leads, audiences, and transactions, simplifying the process of Lead management and integration within company business assets. The use of the LeadsBridge services requires a computer and internet access connected through an internet service provider with a web browser and secured managed login credentials. 

LeadConduit: LeadConduit is a real-time Lead processing platform to capture, enhance, filter and distribute Leads. It uses Lead flows to capture Leads from sources such as website forms and deliver them to recipients such as CRMs. It provides a library of Integrations to receive and pass leads to a variety of systems. 

LeadConduit Premium: The version of LeadConduit that includes more advanced functionality, such as real-time bidding. 

LeadConduit Ping: A 3rd party request to a LeadConduit account holder to bid on a Lead, commonly described as the ping portion of the ping-post lead buying model.  

LeadConduit Event Firehose: The ability to stream a full copy of all LeadConduit events from Your account to an external storage service.

LeadConduit Transaction: When a Lead is processed by one of the Integrations, except for Marketplace Enhancement Integrations.  You can incur multiple LeadConduit Transactions for each attempt at processing a Lead through LeadConduit Automated Retry.

Integrations: Mechanism for passing Lead data between systems. There are three basic types: inbound, outbound and enhancement.

Bring Your Own Credential Enhancements: Enhancement Integrations where You are contracting directly with the service provider. These Enhancements require You to provide your own credentials for the Integration to work. These are billed as “outbound transactions”.

Marketplace Enhancements: Enhancement Integrations for services purchased from ActiveProspect, typically purchased directly within LeadConduit, and do not require You to set up an account with the service provider. Each Marketplace Enhancement is priced individually and does not incur standard LeadConduit Transaction fees. These services are configurable by You within the applications or can be requested. Once configured or requested by You, You are responsible for payment for your use of the services. These services may be subject to additional terms and conditions of the service provider, and You agree to be bound by such terms and conditions. You further agree not to use them for any credit reporting function under the Fair Credit Reporting Act.

TrustedForm: The TrustedForm Service is a Lead certification service that independently verifies the origin of Internet Leads through the use of proprietary JavaScript (“TrustedForm for Web”) installed on a web page, a software development kit (“SDK”) (“TrustedForm for Mobile Apps”) installed within a mobile application or application programming interface (API) requests to retrieve lead data from submissions to a Facebook Ad (“TrustedForm for Facebook Lead Ads”) containing a contact request form. The TrustedForm for Web, TrustedForm for Mobile Apps, and TrustedForm for Facebook Lead Ads each issue a digital certificate (“TrustedForm Certificate”) that is passed with the Lead as an additional data field. The TrustedForm Certificate includes information about the site visitor who submitted a Lead, the time of visit, and the form visited, including what was presented to the consumer. TrustedForm Certificates automatically expire within 3 days of being issued unless either claimed or having the claiming period extended for a 3 month period by a TrustedForm Account holder or the TrustedForm application if a form submission is detected (the “Claiming Period”). ActiveProspect does not control what information is requested from a site visitor in a contact request form. Accordingly, ActiveProspect specifically disclaims any liability with respect to such information or its compliance or non-compliance with applicable laws and regulations, including the Telephone Consumer Protection Act or any rule or regulation implemented thereunder by the Federal Trade Commission, Federal Communication Commission, or other regulatory body. ActiveProspect does not provide legal advice, through the TrustedForm Service or otherwise, and any questions relating to the sufficiency of the TrustedForm Certificate as a record of consent should be addressed to an attorney with expertise in this area of law.  Additional terms and conditions regarding the TrustedForm Certificate are set forth below.  For more information regarding the TrustedForm Certificate, please see the TrustedForm Script End User License Agreement (“TrustedForm Script EULA”) available here: http://activeprospect.com/legal/trustedform-eula, and incorporated herein by reference. The TrustedForm Script EULA governs use of the TrustedForm Script by website operators and Account holders, to the extent they have added the TrustedForm Script to their website.

TrustedForm Consent: API for verifying and documenting consent.  

TrustedForm Insights: This subscription allows you to return additional data about the Lead such as domain, Lead age, location information and more that can be used for the purpose of accepting, rejecting and pricing Leads.

LeadConduit TrustedForm-Enhanced Ping: A query to the TrustedForm Service to request data to be used for the purpose of accepting, rejecting and pricing LeadConduit Bid Pings.  The transaction cost is in addition to the cost of the LeadConduit Bid Ping. No data is appended to the Lead.

LeadConduit TrustedForm-Enhanced Post: A query to the TrustedForm Service to request data to be used for the purpose of accepting, rejecting and pricing leads posted to LeadConduit.  The transaction cost is in addition to the cost of the LeadConduit Transaction. No data is appended to the Lead.

SuppressionList: The SuppressionList Service is a web-based application used for storing hashed contact lists. The SuppressionList API allows You to query Your contact lists in real time to determine whether a particular record is present on the list.

SuppressionList-Enhanced Ping: A query to the SuppressionList service to request data to be used for the purpose of accepting, rejecting and pricing LeadConduit Bid Pings.  The transaction cost is in addition to the cost of the LeadConduit Bid Ping. No data is appended to the lead.

SuppressionList-Enhanced Post: A query to the SuppressionList service to request data to be used for the purpose of accepting, rejecting and pricing leads posted to LeadConduit.  No data is appended to the lead.

 

SuppressionList Query: A query to the SuppressionList service.  

Please note that certain changes that incur additional usage configured by You or by ActiveProspect at Your direction within your Account may incur extra cost for that usage.

 

LIMITED LICENSE; YOUR ACKNOWLEDGMENTS AND RESPONSIBILITIES AS A USER

Subject to Your acceptance and compliance with this Agreement and with Your payment of the fees as set forth in the Order Form, ActiveProspect hereby grants You a limited, nonexclusive, non-transferable, non-sub-licensable, revocable right and license during the Term (defined below) to use the Services You selected in the Order Form and solely and exclusively as contemplated by this Agreement. All rights not expressly granted under this Agreement are retained by ActiveProspect. You may access and use the Services, including in operation with other software, hardware, systems, networks, and services, for Your business purposes so long as such access and use is consistent with the intended use of the Services, as described in this Agreement.

You acknowledge that as part of, and included in the Services, ActiveProspect uses ActiveProspect Technology. Other than as expressly set forth in this Agreement, no license or other rights in the ActiveProspect Technology are granted to You, and all such rights are hereby expressly reserved. You will not, directly or indirectly: (i) modify, copy, or create a derivative work of any part of the ActiveProspect Technology; (ii) reverse engineer, disassemble, or decompile any of the ActiveProspect Technology; (iii) disclose the results of any benchmarking of the Services without the prior written consent of ActiveProspect; (iv) attempt to circumvent any usage tracking or usage limits or other use restrictions that are built into the Service.

The Services are provided solely for Your benefit and not, by implication or otherwise, to any parent, subsidiary, or affiliate. You may not pass through, license, resell, re-provision, or rent the Services (either for a fee or without charge), or allow third parties to use the Services without ActiveProspect’s express written consent. In addition to any other remedies available to ActiveProspect, violation of this section may result in suspension, termination, or other restrictions on Your use of the Services.

You must provide Your full legal name, a valid email address, and any other information requested in the Order Form or online sign-up to complete the signup process. You will identify an administrative user name and password for Your Account. You will be solely responsible for maintaining the security of Your Account. You will immediately notify ActiveProspect of any unauthorized use of the Services or any other known or suspected breach of security or compromise of Your Account credentials.

You represent and warrant that You will comply with all applicable local, state, national, and foreign laws, treaties, and regulations in connection with their use and access of the Services, including, without limitation, Federal Trade Commission implementing regulations, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, (“GDPR”), the California Consumer Privacy Act (“CCPA”), the California Privacy Rights Act (“CPRA”), the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq., and those governing the National Do Not Call Registry, and all rules and regulations promulgated under any of the foregoing.

You: (i) will be responsible for all activities that occur under Your Account; (ii) will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Content and Data; (iii) will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services; (iv) will not use the Services to violate any laws or regulations or infringe the intellectual property or other rights of third parties; (v) will not transmit material that contains viruses or other harmful computer code or files in connection with Your use of the Services; (vi) will not use the Services in connection with any defamation, libel, slander, obscenity, fraud, or violation of the rights of privacy or publicity, promotion of violence, hatred, or racial or religious intolerance, or any other offensive, harassing or illegal conduct. Although ActiveProspect has no obligation to monitor Your Content and Data or Your use of the Services, ActiveProspect may do so and may remove Your Content and Data and prohibit Your use of the Services that we believe, in our sole discretion, to be in violation of the foregoing.

You understand that ActiveProspect uses third-party vendors and hosting partners to provide hardware, software, networking, storage, and related technology required to run the Services. You acknowledge that the Services are designed to support current, updated versions of all major Internet browsers but that some browsers or versions of browsers may not be compatible with the Services.

If You are a TrustedForm Account holder as well as a licensee of TrustedForm for Web, Trusted Form for Mobile Apps, or Trusted Form for Facebook Lead Ads, You agree to the terms set forth in the TrustedForm EULA, available here: http://activeprospect.com/legal/trustedform-eula

You represent and warrant that You will not fabricate, forge, copy, recreate, reverse engineer, or otherwise modify any TrustedForm Certificate.  You will immediately notify ActiveProspect of any suspected or known fraudulent TrustedForm Certificate in writing.  Any TrustedForm Certificate not validly claimed by You within the time limitations set forth herein will no longer be valid and ActiveProspect disclaims any liability related to unclaimed TrustedForm Certificates.  

 

TECHNICAL UPDATES

ActiveProspect may occasionally make updates or modifications to the Services (“Technical Updates”). By subscribing to the ActiveProspect status page located at http://status.activeprospect.com, You will receive notifications of such Technical Updates. ActiveProspect will exercise reasonable efforts to provide advance notice via the status page, allowing you to test any Technical Updates prior to their release into production.  ActiveProspect will provide reasonable advanced notice of any Technical Update which materially inhibits Your ability to use the Services.

 

DATA STORAGE & DESTRUCTION

Data storage and destruction policies vary by service, as described in more detail below.

LeadConduit: LeadConduit is not intended for long-term data storage. Unless explicitly stated otherwise, ActiveProspect reserves the right to delete Leads stored in LeadConduit that are more than 90 days old. ActiveProspect is not responsible for storage of Leads after that 90-day period.

TrustedForm: TrustedForm is designed to store Claimed Certificates for as long as needed to fulfill the purpose for which they were created. Unclaimed TrustedForm Certificates are automatically destroyed after the Claiming Period. The Claiming Period is intended to provide sufficient time for You to review the data collected by the TrustedForm Certificate and for You or a Lead Buyer to claim the TrustedForm Certificate before it is destroyed. Accordingly, You may review any TrustedForm Certificate during the Claiming Period. Claimed TrustedForm Certificates, will be stored for the amount of time specified by the TrustedForm Account holder that claimed the Certificate. Claimed TrustedForm Certificates more than 30 days old may have a 3 to 5 hour delay for retrieval.

SuppressionList: SuppressionList is designed to store lists of hashed data for as long as needed to fulfill the purpose for which such data was collected. Data will be retained as long as You are paying for the Service.

If you need to delete an individual consumer’s record from our systems, the process is to make the request by emailing [email protected] Our support team will assist in the coordination of the data deletion request. In the case of LeadConduit, if you can provide any supplementary linkable data for searching, including associated PII or the Lead ID, this will assist in making the requested deletions. In the case of TrustedForm Certificates, you must provide us with the certificate URL. We are unable to search for a corresponding TrustedForm Certificate using PII.

LeadsBridge:  If you are purchasing the LeadsBridge services, by accepting these Terms of Service, you also accept the LeadsBridge Privacy Policy and Data Protection Agreement (DPA).  In the event of any inconsistency between the content of these Terms of Service, the Privacy Policy and the DPA, the Terms of Service shall prevail followed by the DPA and then the Privacy Policy.

 

SENSITIVE DATA

You represent and warrant that You may not use any of the Services to input Sensitive Data: TrustedForm, LeadsBridge, LeadConduit, and SuppressionList. Sensitive Data may be collected by You via LeadConduit, subject to the following terms and conditions:

 

Protection of Sensitive Data in Transit:

Any Sensitive Data sent to or from LeadConduit must be transmitted via SSL connection. ActiveProspect uses industry standard SSL ciphers to ensure Sensitive Data is protected while in transit.

 

Protection of Sensitive Data at Rest:

Select Sensitive Data fields within LeadConduit are handled, processed, and stored with additional protections which may disallow storage, hash values, obfuscate display, or restrict data export or aggregate data reporting of these data fields in LeadConduit.  An example of a flagged data field with additional data protections is Social Security Number (“SSN”).  SSN designated fields or fields formatted similar to SSN are restricted so as not to be written or stored in LeadConduit, not written to log files, not displayed and not exportable from LeadConduit.  You may designate or flag other Sensitive Data fields as needed to ensure these additional protections.     

Per the TrustedForm Script EULA, the TrustedForm service may not be used to capture Sensitive Data fields. If you place the TrustedForm script on a site that collects Sensitive Data, you must flag these fields as containing Sensitive Data.  The TrustedForm script allows you to flag any or all fields containing Sensitive Data. When this feature is used, TrustedForm applies a cryptographic hash to the flagged fields.  When a TrustedForm session replay is viewed, the data in a flagged field will be seen only as a series of asterisks.  TrustedForm also supports the ability to treat all fields as Sensitive Data. When this option is selected, you can flag individual fields that you don’t want to be treated as Sensitive Data.

You shall not use the Services to collect Sensitive Data in field types that are not specifically marked for Sensitive Data, or in any way attempt to circumvent the security protocols described herein.

 

PROFESSIONAL SERVICES

ActiveProspect may from time to time perform certain professional services on an hourly fee or project basis, such as integrating ActiveProspect products with client systems or customizing the Services (“Professional Services”). Professional Services will be performed only on Your advance approval and You will be invoiced at the rate on your Order Form or at other rates approved in advance in writing by You. If Professional Services hours are purchased in advance, there are no refunds for unused time and such time will not be rolled over to the following month. ActiveProspect will retain the sole and exclusive right to control or direct the manner or means by which the Professional Services are performed, and we may subcontract or assign any or all of our obligations and rights to conduct the Professional Services under this Agreement. All right, title, and interest, including all Intellectual Property Rights, in any ideas, know-how, and software developed by ActiveProspect or its licensors during the course of performance of the Professional Services will remain the property of ActiveProspect or its licensors. Any estimates of total fees provided on a time and materials basis are estimates only. Delays caused by You could impact estimated fees and estimated hours.

 

YOUR CONTENT AND DATA; PRIVACY

ActiveProspect does not own Your Content and Data. All Content and Data, as input into the ActiveProspect Technology by You and prior to any modifications made by the ActiveProspect Technology and/or Services, shall remain your property.  You represent and warrant that You have the authority to collect, use, market, sell, or distribute Your Content and Data, including but not limited to Leads, in compliance with applicable law. Nothing contained in this Agreement shall be construed as granting ActiveProspect the right to collect, use, market, sell, or distribute Your Content and Data, except in accordance with this Agreement. You hereby grant to ActiveProspect a nonexclusive, non-transferable, royalty-free, fully paid up, limited license, to use Your Content and Data solely for the purpose of performing ActiveProspect’s obligations, or exercising ActiveProspect’s rights, under this Agreement. Notwithstanding the foregoing, ActiveProspect reserves the right to use Your Content and Data in an aggregate, de-identified fashion for legitimate business purposes, including but not limited to analyzing and reporting on general industry trends. ActiveProspect reserves the right to provide Your Content and Data contained in a TrustedForm Certificate to the holder of the TrustedForm Certificate (e.g. when the TrustedForm Certificate URL is shared with third parties).

You agree to abide by all applicable local, state, national, foreign, and international laws and regulations and that You will be solely responsible for all acts or omissions that occur under Your account or password, including but not limited to the content of Your transmissions through the Services. 

You further represent and warrant that You are providing suitable and compliant notice and consent language prior to data collection and that Your privacy policy describes the types of personal information You collect, how You use such information, whether such information is shared with third parties, and how any third parties use such shared information. You are solely responsible for ensuring that Your privacy policy complies with all relevant legal requirements. You will not use a Service to: (i) collect, or attempt to collect, personal information about third parties without their knowledge or consent; (ii) collect or store account numbers from credit cards, debit cards, bank accounts, or other financial systems; (iii) collect or store U.S. Social Security Numbers or other personal identification numbers issued by other governments, except as expressly set forth in this Agreement; (iv) collect, store or otherwise handle personal information in violation of any applicable law, including without limitation the U.S. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the U.S. Children’s Online Privacy Protection Act of 1998 (“COPPA”), or the EU Data Protection Directive 95/46 and implementing legislation; or (v) collect, store or otherwise handle personal information in violation of Your privacy policy.

You acknowledge and understand that ActiveProspect is not certified under the U.S.-EU Privacy Shield framework, and You accept any associated risks. LeadsBridge participates in and has certified its compliance with the EU — U.S. Privacy Shield Framework and the Swiss — U.S. Privacy Shield Framework. For more information on the LeadsBridge Privacy Shield framework, please see the LeadsBridge Privacy Policy at leadsbridge.com/privacy/.

If You are a TrustedForm Account holder and have implemented TrustedForm for Web, TrustedForm for Mobile Apps and/or TrustedForm for Facebook Lead Adson Your web page, You further represent and warrant that You require or provide compliant notice language on the webform prior to any data collection and that Your privacy policy clearly and conspicuously discloses the use of third-party tracking technology and otherwise complies with the requirements set forth in the TrustedForm EULA available here: http://activeprospect.com/legal/trustedform-eula.

ActiveProspect’s CCPA Obligations: (i) ActiveProspect will only collect, use, retain, or disclose personal information for the Contracted Business Purposes for which You provide or permit personal information access; (ii) ActiveProspect will not collect, use, retain, disclose, sell, or otherwise make personal information available for ActiveProspect’s own commercial purposes or in a way that does not comply with the CCPA. If a law requires ActiveProspect to disclose personal information for a purpose unrelated to the Contracted Business Purpose, ActiveProspect must first inform You of the legal requirement and give You an opportunity to object or challenge the requirement, unless the law prohibits such notice; (iii) ActiveProspect will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible operational purpose; (iv) ActiveProspect must promptly comply with Your request or instruction requiring ActiveProspect to provide, amend, transfer, or delete the personal information, or to stop, mitigate, or remedy any unauthorized processing; and (v) ActiveProspect will contractually require You, when implementing TrustedForm for Web, TrustedForm for Mobile Apps and/or TrustedForm for Facebook Lead Ads, to provide a CCPA-compliant notice to consumers that addresses data use and collection methods. ActiveProspect will reasonably cooperate and assist You with meeting Your CCPA compliance obligations and responding to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account the nature of ActiveProspect’s processing and the information available to ActiveProspect. ActiveProspect must notify You immediately if it receives any complaint, notice, or communication that directly or indirectly relates to either party’s compliance with the CCPA. Specifically, ActiveProspect must notify You within 20 working days if it receives a verifiable consumer request under the CCPA.

CCPA Warranties and Certification: Both parties will comply with all applicable requirements of the CCPA when collecting, using, retaining, or disclosing personal information. ActiveProspect certifies that it understands this Agreement and the CCPA’s restrictions and prohibitions on selling personal information and retaining, using, or disclosing personal information outside of the parties’ direct business relationship, and it will comply with them. ActiveProspect warrants that it has no reason to believe any CCPA requirements or restrictions prevent it from providing any of the Contracted Business Purposes or otherwise performing under this Agreement. ActiveProspect must promptly notify You of any changes to the CCPA’s requirements that may adversely affect its performance under the Agreement.

 

INTELLECTUAL PROPERTY OWNERSHIP

You acknowledge and agree that: (i) the Services and ActiveProspect Technology are licensed, not sold, to You by ActiveProspect and You do not and will not have or acquire under or in connection with this Agreement any ownership interest in the Services or the ActiveProspect Technology, or in any related Intellectual Property Rights; (ii) ActiveProspect and its licensor(s) are and will remain the sole and exclusive owners of all right, title, and interest in and to the Services and the ActiveProspect Technology, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in open-source components and the limited license granted to You under this Agreement; and (iii) You hereby unconditionally and irrevocably assign to ActiveProspect, your entire right, title, and interest in and to any Intellectual Property Rights that You may now or hereafter have in or relating to the Services or the ActiveProspect Technology (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Services or the ActiveProspect Technology.

 

DUTY TO MAINTAIN CONFIDENTIAL INFORMATION AND TRADE SECRETS

During the Term of this Agreement, either party may disclose (the “Disclosing Party”) certain proprietary information to the other party (the “Receiving Party”), including but not limited to, information relating to the Disclosing Party’s business, products, processes, pricing, customer profiles, methods of operations, and confidential or proprietary or that a reasonable party would understand to be confidential or proprietary (“Confidential Information”). The Receiving Party  shall not use, disclose, or cause or permit to be disclosed, any of the Disclosing Party’s Confidential Information to any individual or entity other than the Receiving Party without the prior written consent of the Disclosing Party.  The following exceptions apply and are not subject to the confidentiality requirements herein: (i) information that is or becomes generally available to the public; (ii) information that was in the Receiving Party’s possession or known by it before receipt from the Disclosing Party; (iii) information that was rightfully disclosed to the Receiving Party without restriction by a third party; (iv) information that was independently developed without use of any Confidential Information of the Disclosing Party; and (v) information which is required to be disclosed by law or governmental regulation. Your API key used to claim TrustedForm Certificate(s) shall be considered Confidential Information as defined herein.

If, at any time, You are made aware or become aware of any information which may be considered a trade secret pursuant to 18 U.S.C. § 1836, et seq. (the “Defend Trade Secrets Act of 2016”), such information shall be deemed Confidential Information and proprietary to ActiveProspect and subject to the confidentiality restrictions set forth above.

 

PAYMENT TERMS; TAXES

You agree to pay all fees as specified on Your Order Form and/or your self-service Account.  Unless agreed to otherwise in an Order Form, You are required to make payment of amounts due through Autopay by ACH or Credit Card using Solupay, or another payment platform authorized by ActiveProspect.  You will not receive access to the Services until Your Solupay account has been created, and ActiveProspect receives confirmation that automatic draft payments have been designated as “non-negotiable” (“AutoPay Confirmation”).  You shall remain obligated to make all payments due, which shall commence and accrue as of the Billing Start Date set forth in the Order Form, even where You fail to provide AutoPay Confirmation.

When You provide credit card or ACH  information, You authorize ActiveProspect to charge such credit card or bank account for the Services listed in the Order Form for the initial term and any renewal terms. Fees shall be charged in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. Unless specified otherwise in the Order Form, we will invoice You in advance for all regularly recurring fees, such as subscription fees, and we will invoice You in arrears for all usage-based fees. We may increase the subscription fees for any renewal terms. You will provide such information to us as reasonably required to determine whether we are obligated to collect any taxes from You. Fees do not include any foreign, federal, state, or local sales, use, or other similar taxes, however designated, levied on the Services. You shall pay, or reimburse ActiveProspect for, all such taxes imposed on ActiveProspect.

Any amount owed by You which is not paid when due will bear interest at the rate of one percent (1%) per month or the maximum amount allowable by law, whichever is less. You shall pay ActiveProspect’s reasonable costs and expenses (including reasonable attorneys’ fees) to enforce its rights under this Agreement. You must notify ActiveProspect in writing of any dispute of fees (along with substantiating documentation and a reasonably detailed description of the dispute) within 10 business days following the date of invoicing, or your right to dispute such fees is forever waived. All amounts payable to ActiveProspect under this Agreement shall be paid by You in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). The parties shall seek to resolve any disputes expeditiously and in good faith.

TERM AND TERMINATION

The term of this Agreement (the “Term”) will commence as of the Service Commencement date indicated on the Order Form, or the earlier of: (i) the date You click I AGREE (or similarly labeled button) when signing up online; (ii) the date You begin using the Services; or (iii) the date you sign the Order Form and the Services are made available to You. The Term will remain in effect as long as You continue to use the Services, and it will continue to apply until terminated by either You or ActiveProspect. ActiveProspect reserves the right to change, limit, or modify the Services with or without prior notice. ActiveProspect reserves the right to terminate or permanently cease providing the Services, with 30 days’ prior notice.  Notwithstanding the foregoing, if ActiveProspect suspects (within its sole and reasonable discretion) that Your account has been used to conduct fraudulent or unlawful activity or in violation of this Agreement, ActiveProspect reserves the right to terminate your account and access to the Services immediately and without prior notice.  All of Your Content and Data may be immediately deleted from ActiveProspect’s system upon termination of this Agreement. 

At any time, you may ask ActiveProspect to temporarily pause your Account and any related Services. ActiveProspect may approve this temporary pause for up to 3 months in its sole and reasonable discretion. Any pause on Your Account shall be subject to a monthly fee of $250 (the “Account Retention Fee”).   Payment of the Account Retention Fee does not relieve You of any payment obligations during the Term, as set forth in Your Order Form or other agreement with ActiveProspect. You may reach out to ActiveProspect to reinstate Your Account and Services at any time.

SECURITY MEASURES

ActiveProspect’s TrustedForm and LeadConduit products maintain SOC 2 Type 2 compliance. ActiveProspect data is hosted at facilities that maintain security in accordance with industry security best practices, such as SOC 2 attestation. ActiveProspect products all utilize industry standard security measures. However, You acknowledge and agree that no security measure is perfect or impenetrable, and ActiveProspect will not be held liable for unauthorized access to our servers or databases. Therefore, ActiveProspect cannot and does not guarantee that Your Content and Data will not be accessed by unauthorized persons.

Two-Factor Authentication (“2FA or MFA”):  All contracted Accounts created on or after January 26, 2022 will have 2FA required by default for all Users in the Account. This does not include online sign-up accounts. Customers who sign up online may request to have 2FA enabled at the Account level by sending such request to [email protected].  2FA only applies when using the LeadConduit, TrustedForm and SuppressionList products.

 

PUBLICITY

We may identify You as an ActiveProspect customer in our promotional materials, including Your name and company logo. You may request that we stop doing so by submitting an email to [email protected] at any time. Please note that it may take us up to 30 days to process Your request.

 

PERIODIC REVISIONS TO THIS AGREEMENT

ActiveProspect reserves the right to update and modify this Agreement from time to time. Any new features that modify the Services, including the release of new tools and resources, shall be subject to this Agreement. Your continued use of the Services after any such revisions or modifications means that You consent and agree to such changes. You agree to visit http://activeprospect.com/legal/tos periodically to review the most current version of this Agreement.

 

NOTICES

Notices required under this Agreement by You must be provided in writing to ActiveProspect at 4009 Marathon Blvd, Austin, TX 78756, Attention: President, with a copy to the same address to the Attention of General Counsel, or by email to [email protected] Notice by ActiveProspect to You shall be deemed given when posted to the ActiveProspect Status page located at http://status.activeprospect.com or transmitted to the email address You used to create Your Account. If You send us an email, You agree that the User ID and alias contained in the email are legally sufficient to verify You as the sender.

 

GOVERNING LAW, VENUE

THE PARTIES AGREE THAT THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, EXCLUDING ITS CONFLICTS OF LAWS RULES, WILL BE APPLIED TO GOVERN, CONSTRUE, AND ENFORCE ALL OF THE RIGHTS AND DUTIES OF THE PARTIES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN THE STATE AND FEDERAL COURTS LOCATED IN TRAVIS COUNTY, TEXAS, AND WAIVE ANY OBJECTION TO SUCH JURISDICTION OR VENUE.

 

MUTUAL INDEMNIFICATION

Indemnification by Us: We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your Content and Data, Third-Party Services, or Your breach of this Agreement.

Indemnification by You: You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Content and Data, or Your use of any Service or Content and Data in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.

Exclusive Remedy: This Section (“MUTUAL INDEMNIFICATION”) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

 

DISCLAIMERS; LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, ACTIVEPROSPECT (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES) (COLLECTIVELY THE “ACTIVEPROSPECT PARTIES”), ITS THIRD PARTY LICENSORS, PROVIDERS, AND SUPPLIERS, DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, AND THOSE WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY ACTIVEPROSPECT OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE OR INFORMATION PROVIDED.

ACTIVEPROSPECT DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE CAN BE PROVIDED TO YOU OR THAT IT CAN BE ACCESSED AT YOUR LOCATION. THE AVAILABILITY OF THE SERVICES IS SUBJECT TO INTERNET AVAILABILITY AND YOUR COMPUTER OR DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS.

ACTIVEPROSPECT DOES NOT WARRANT THAT THE SERVICES, INCLUDING ANY THIRD-PARTY SERVICES, WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE. ACTIVEPROSPECT SHALL NOT BE LIABLE FOR LOSS OF YOUR CONTENT AND DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.

EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICES OR YOUR DATA CONTENT, OR RELIANCE ON OR PERFORMANCE OF THE SERVICES OR YOUR DATA CONTENT, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

IN NO EVENT WILL ACTIVEPROSPECT’S LIABILITY TO YOU FOR ANY AND ALL CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO, IN WHOLE OR IN PART, THIS AGREEMENT, OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT OR OTHERWISE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU UNDER THE ORDER FORM RELATING TO THE APPLICABLE SERVICES.

 

GENERAL PROVISIONS

All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including without limitation, those relating to the parties’ representations and warranties, indemnification, and limitation of liability, shall survive such termination.

Neither party will be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services.

You may not assign or otherwise transfer this Agreement, or Your rights or obligations under it, in whole or in part, to any other person. Any attempt to do so shall be void. ActiveProspect may freely assign all or any part of this Agreement with or without notice.

ActiveProspect’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

This Agreement is for the sole benefit of the parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.


Last Update: 4/1/22