Contact us

LEAD GENERATION SERVICES AGREEMENT

This Lead Generation Services Agreement (hereinafter referred to as “Agreement”), is entered into by and between Pipeline360, Inc., (together with Pipeline360, Inc.’s Pipeline360 Affiliates, “Pipeline360“), and you (the Party executing an Insertion Order with Pipeline360, hereinafter referred to as a “Marketer”) and Marketer’s Affiliates. Pipeline360 and Marketer are sometimes referred to herein individually as a “Party” and collectively the “Parties”.

TERMS AND CONDITIONS

1. DEFINITIONS

  1. Affiliate(s) are entities that are directly or indirectly controlling, controlled by or under common control with a Party, where control means the ownership or control, directly or indirectly, of more than 50 percent of all the voting shares; provided that an entity shall be considered an affiliate only for the time during which such control exists.
  2. Campaign is a set of criteria, content, fields, and/or other parameters defined by Marketer to generate, manage, and process incoming Records from one or more Sources.
  3. Creative(s) means anything provided by Marketer on behalf of itself, Affiliate, or any other clients within its network or any asset provided by Marketer, including, but not limited to, advertising materials, white papers, email content, call scripts, webinars, abstracts, case studies, videos, presentations, artwork, or active URLs for advertisements and product sheets.
  4. Insertion Order or IO is an order:
    1. authorizing Pipeline360 to create Campaign(s) within the Services on behalf of Marketer thereby allowing Sources to generate Records consistent with the terms of the IO; and/or
    2. to purchase Digital Display Advertising (“Digital Display Advertising”), as defined in Section 4 below, from Pipeline360.
  5. Intellectual Property means all intellectual property rights recognized under applicable law, including without limitation all rights in and to patents, patent applications, inventions, trade secrets, know-how, confidential information, copyrights, moral rights, trademarks, and all other proprietary rights, together with all registrations, applications, renewals, extensions, continuations, and rights to enforce any of the foregoing.
  6. Pipeline360 Intellectual Property means Intellectual Property owned by or licensed to Pipeline360 before or independently of the Agreement, including any modifications, enhancements, or derivative works.
  7. Marketer Intellectual Property means Intellectual Property owned by or licensed to the Marketer before or independently of the Agreement.
  8. Lead Generation Services means the sourcing, validation, processing, and delivery of Records by Pipeline360 through Pipeline360’s network of approved lead suppliers and technology partners.
  9. A Record means a data set generated by a Source in response to a Campaign, containing the information required by the applicable IO. A Record that satisfies the validation requirement set forth in the applicable IO shall constitute a Valid Record.
  10. Source means a publisher, Affiliate, network, or media partner or other third-party supplier that generates Records.

2. SCOPE OF AGREEMENT

This Agreement and each applicable Insertion Order (“IO”) together constitute the agreement between the Parties. In the event of a conflict between this Agreement and an IO, the terms of this Agreement shall control unless the applicable IO expressly states that a specific provision of the IO is intended to supersede a specific provision of this Agreement, in which case the IO shall control solely with respect to that subject matter.

3. ABILITY TO BIND MARKETER

  1. Campaigns will be established and managed by Pipeline360 in accordance with the applicable IO. Material modifications to an IO, including changes to budget, target criteria, or campaign end dates, require written approval by both Parties.
  2. Pipeline360 may utilize any Source within its lead generation supplier network to provide Lead Generation Services.

4. PAYMENT AND PAYMENT LIABILITY

  1. Payments shall be made pursuant to the terms of an IO. Any successfully returned Records pursuant to Section 4(c) below that are accepted after an invoice has been issued will be credited to Marketer’s account and applied to any outstanding amounts.
  2. Late Delivery of Records. If the quantity of delivered Records for any Campaign is less than the ordered quantity, as set forth on the IO, Marketer agrees that Records can be delivered up to five (5) days after the end date of a Campaign and that Marketer is responsible for payment for such Records. If Marketer has made an upfront payment to Pipeline360 as specified on an IO for which under-delivery occurred and Marketer is current on all amounts owed to Pipeline360 under any other IO, Marketer may elect to receive a refund for the under-delivered quantity equal to the difference between the applicable pre-payment and the value of the delivered portion of the Campaign.
  3. Returns. Marketer must submit any disputed Records by the 15th day of the month following delivery together with reasonable supporting documentation. Failure to timely submit disputed Records waives Marketer’s right to challenge such Records.
    1. A disputed Record includes but is not limited to a Record that:
      1. has invalid or erroneous contact information;
      2. does not match the target criteria for the Campaign in which it was generated;
      3. has been previously provided through the Services within the previous sixty (60) days (i.e., a duplicate Record);
      4. the Marketer denies requesting the service for which the Record was allegedly generated.
    2. Record Disputes. Marketer must provide reasonable supporting documentation for any disputed Record. Upon receipt of a dispute, Pipeline360 will investigate the matter in good faith, including by consulting with the applicable Strategic Data Partner. If the dispute regarding the validity of a Record cannot be resolved through Pipeline360’s review with the applicable Strategic Data Partner within thirty (30) days, Pipeline360 will evaluate the information provided by the Marketer and the applicable Strategic Data Partner and issue its determination regarding the validity of the disputed Record. Marketer may request one senior-level internal review within ten (10) days after receiving Pipeline360’s determination. Following such review, Pipeline360 will issue its final determination regarding the validity of the disputed Record. For the avoidance of doubt, Marketer may not dispute the validity of any Record that has been utilized in any way, including, without limitation, by contacting, marketing to, distributing, or otherwise using the Record.
  4. Payment Liability. Marketer is solely responsible for all amounts due under any executed IO. Marketer shall pay Pipeline360 for all Valid Records in accordance with the applicable IO and based on P360’s tracking. Pipeline360 has no responsibility for any payment obligation between Marketer and Source. If Marketer fails to identify the Campaign or invoice to which a payment applies, Pipeline360 may apply such payment in its reasonable discretion. Marketer shall reimburse Pipeline360 for any reasonable costs, including attorney’s fees, incurred in collecting undisputed amounts past due under this Agreement.
  5. Late Fees and Payments. A late charge of 1.5% per month will be charged to Marketer for all late payments.

5. REPRESENTATION AND WARRANTIES

  1. Marketer represents, warrants, covenants and agrees that:
    1. Marketer enters into this Agreement with the intent to use the Records consistent with the terms of this Agreement, ethical business practices, and all laws and regulations;
    2. Marketer has the full right, power and authority to enter into this Agreement;
    3. The execution of this Agreement by Marketer, Marketer’s use of the Records and Marketer’s performance of its obligations hereunder does not and will not violate any law or regulation, or any agreement to which Marketer is a party;
    4. Marketer will not engage in or facilitate the use of indiscriminate advertising or unsolicited commercial email, or otherwise fail to comply with the CAN-SPAM Act of 2003 or any successor legislation or any other law or regulation that governs marketing or communications;
    5. Pipeline360 may identify Marketer as a customer in customer lists, sales materials, and marketing materials unless Marketer provides written notice objecting to such use.
  2. Pipeline360 represents, warrants, covenants, and agrees that:
    1. It has the full right, power, legal capacity, and authority to enter into and perform this Agreement;
    2. The execution and performance of this Agreement do not knowingly violate any applicable law or any material agreement binding upon Pipeline360;
    3. Pipeline360 will use commercially reasonable personnel, resources, and facilities necessary to perform the Lead Generation Services in accordance with this Agreement.

    Except as expressly set forth herein, Pipeline360 makes no other representations or warranties.

6. INDEMNIFICATION

  1. Marketer shall defend, indemnify, and hold harmless Pipeline360, its affiliates, officers, directors, employees and agents from and against any third party claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
    1. Marketer’s use of any Record or Lead Generation Services in violation of applicable law;
    2. Any Creative, content, materials, instructions, or specifications supplied by or on behalf of Marketer; or
    3. Marketer’s violation of applicable intellectual property, privacy, publicity, marketing, advertising or consumer protection laws.
  2. Pipeline360 shall defend, indemnify, and hold harmless Marketer, its affiliates, officers, directors, employees and agents from and against any third party claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
    1. Pipeline360’s violation of applicable law in providing the Lead Generation Services; or
    2. Allegations that Pipeline360-owned materials provided to Marketer infringe a third party’s intellectual property rights.
  3. The Indemnified Party shall promptly notify the Indemnifying Party of any claim and reasonably cooperate in the defense thereof. The Indemnifying Party shall control the defense and settlement of the claim, provided that no settlement imposing liability or obligations on the Indemnified Party may be entered into without the Indemnified Party’s prior written consent, not to be unreasonably withheld.

7. WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PIPELINE360 MAKES NO WARRANTIES REGARDING THE QUANTITY, PERFORMANCE, CONVERSION RATE, SALES RESULTS, OR BUSINESS OUTCOMES ASSOCIATED WITH ANY CAMPAIGN OR RECORD. THE LEAD GENERATION SERVICES AND CORRESPONDING RECORDS ARE PROVIDED ON AN “AS-IS” BASIS AND PIPELINE360 DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. LIMITATION OF LIABILITY

  1. Neither Party shall be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages, including lost profits, arising out of this Agreement, except to the extent such damages arise from a Party’s gross negligence or willful misconduct, breach of Section 9 (Confidentiality), or indemnification obligations under Section 6.
  2. Except for:
    1. a Party’s indemnification obligations under Section 6;
    2. damages resulting from death or bodily injury or physical damage to tangible real or personal property caused by a Party’s gross negligence; and
    3. damages resulting from a Party’s gross negligence or willful misconduct,
    each Party’s aggregate liability shall not exceed the total fees paid under the applicable IO giving rise to the claim during the twelve (12) months preceding the event giving rise to such claim, regardless of whether the claim is based in contract, warranty, indemnity, negligence, strict liability, tort, or otherwise.

9. CONFIDENTIALITY, INTELLECTUAL PROPERTY, DATA PROCESSING

  1. Confidential Information means non-public information disclosed by a Party that is designated confidential or that reasonably should be understood to be confidential given the timing of and nature of the information disclosed.
    1. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which:
      1. was previously known to Recipient;
      2. was or becomes generally available to the public through no fault of the Recipient;
      3. was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the Discloser;
      4. was developed by employees or agents of Recipient independently of and without reference to any Confidential Information communicated to Recipient by Discloser;
      5. was communicated by Discloser to an unaffiliated third party free of any obligation of confidence.

      Notwithstanding the foregoing, either Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law, provided that:

      1. the Recipient promptly notifies the Discloser of such disclosure requirement;
      2. the Recipient cooperates (at Discloser’s expense) in any lawful effort by Discloser to oppose or limit such disclosure; and
      3. the Recipient discloses only so much of such Confidential Information as, on advice of counsel, it is legally obligated to disclose.
    2. Marketer and Pipeline360 agree that the Recipient of the Confidential Information shall always maintain the Discloser’s Confidential Information in confidence, keep it secret and not disclose or divulge it, or allow it to be disclosed or divulged or made accessible except as may be expressly permitted in this Agreement.
    3. Each Party agrees that a material breach of this Section 9 may cause irreparable harm for which monetary damages may not be adequate and that the Discloser shall be further entitled to seek injunctive relief in addition to any other remedies available at law or equity. Nothing contained in this Agreement shall be interpreted as granting rights by license or otherwise in any Confidential Information disclosed pursuant to this Agreement.

    Each Party retains all rights, title, and interest in its respective intellectual property. Pipeline360 retains ownership of its methodologies, processes, supplier relationships, campaign structures, reporting formats, and other proprietary materials used in providing the Services. No ownership rights are transferred under this Agreement.

  2. Data Processing.
    1. To the extent Pipeline360 processes personal data on behalf of Marketer in connection with the Services, the Parties agree to comply with the terms of the Data Processing Addendum located at https://www.pipeline-360.com/dpa, which is incorporated into and forms part of this Agreement by reference.
    2. Pipeline360 may use sub-processors to perform portions of the Lead Generation Services. Marketer hereby authorizes Pipeline360 to use sub-processors to process personal data in accordance with this Agreement and any IO. Marketer may view the list of current sub-processors at https://www.pipeline-360.com/subprocessors. Pipeline360 will provide Marketer with notice of any intended changes concerning the addition or replacement of its sub-processors by providing Marketer with thirty (30) days’ notice. If Marketer does not object within this time frame, which Marketer may do in its sole discretion, Marketer is deemed to have consented to the new Sub-processors.
    3. Nothing herein shall prohibit Pipeline360 from using anonymous aggregate data for purposes of system performance, reporting and tuning, and for purposes of marketing, sales, business development.

10. TERM AND TERMINATION

  1. This Agreement shall become effective on the later of the dates on which it is signed by the Parties and shall remain in effect until it is terminated in accordance with this Section.
  2. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other Party.
  3. Termination of this Agreement shall not terminate any active IO unless:
    1. the Parties mutually agree in writing to terminate the applicable IO; or
    2. the applicable IO expressly provides otherwise.

    All active IOs shall remain in effect until completed, expired, or terminated in accordance with their terms.

  4. Upon termination of this Agreement, Pipeline360 will cease accepting new Campaigns under this Agreement, but shall continue providing Lead Generation Services for any active IOs that remain in effect until such IOs expire or are terminated in accordance with this Section. The termination or suspension of an individual IO shall not terminate this Agreement or any other active IO. To terminate or pause a specific IO, Marketer must provide Pipeline360 with at least forty-eight (48) hours’ prior written notice identifying the applicable IO. Such termination or suspension shall apply only to the identified IO.
  5. Marketer shall remain responsible for payment of all Valid Records delivered pursuant to any active IO, including Records generated up to forty-eight (48) hours following receipt of a termination notice where such generation results from Campaigns already in progress.
  6. Either Party may terminate this Agreement immediately upon written notice if the other Party becomes the subject of any bankruptcy, insolvency, receivership, liquidation, or assignment for the benefit of creditors proceedings.
  7. Survival. The provisions of Section 4 (Payment Obligations), Section 6 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidentiality and Intellectual Property), Section 11 (Non-Circumvention), and Section 12 (Governing Law and Dispute Resolution), together with any other provisions that by their nature are intended to survive, including any accrued rights or obligations, shall survive the expiration or termination of this Agreement.

11. NON-COMPETE AND NON-CIRCUMVENT

During the Term, Marketer shall not knowingly solicit, engage, or procure Lead Generation Services directly from any Source first identified to Marketer through Pipeline360’s Confidential Information, where such services are substantially similar to the Lead Generation Services provided through Pipeline360 and where Marketer would not otherwise have known of such Source absent Pipeline360 disclosure.

Nothing in this Section shall prohibit Marketer from:

  1. marketing, advertising, or selling its products or services generally to the marketplace;
  2. engaging with any Source with whom Marketer had a documented business relationship prior to Pipeline360’s disclosure;
  3. engaging with any Source independently identified by Marketer without use of Pipeline360’s Confidential Information; or
  4. responding to general solicitations, public advertisements, or unsolicited inquiries not resulting from the use of Pipeline360’s Confidential Information.

Marketer further agrees not to use reverse engineering, tracing, tracking analysis, or similar methods to identify Pipeline360’s Sources, suppliers, partners, or clients through Pipeline360’s Confidential Information for the purpose of circumventing Pipeline360.

12. GENERAL PROVISIONS

  1. Force Majeure. Neither Party will be liable for or will be in breach of this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, fire, explosion, vandalism, internet outages not attributable to Pipeline360, any act or policy of any app store, storm or other natural occurrences, any conflicting order, direction, action or request of a government (including, without limitation, state or local governments) or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, acts of terrorism, wars, strikes, lockouts, work stoppages or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such event.

    Notwithstanding the foregoing, the Parties’ obligations to one another shall be excused and/or postponed during and only for the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended unless otherwise agreed to by the Parties.

    Nothing in this Section relieves Marketer of its obligation to pay for Lead Generation Services performed or Valid Records delivered prior to the applicable force majeure event. Marketer shall have no obligation to pay for Lead Generation Services not performed or Valid Records not delivered solely as a result of a force majeure event affecting Pipeline360’s performance.

  2. Governing Law; Severability and Survivability. This Agreement shall be treated as though it were executed and performed in Phoenix, Arizona, and shall be governed by and construed in accordance with the laws of the State of Arizona (without regard to conflict of law principles). Marketer agrees that any legal action or proceeding between Pipeline360 and Marketer shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Phoenix, Arizona.

    The Parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them.

    Any cause of action or claim either Party may have with respect to this Agreement must be commenced within six (6) months after the claim or cause of action arises or such claim or cause of action shall be barred.

    The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. If any provision of this Agreement conflicts with any other rule, regulation, or agreement, the terms and conditions of this Agreement shall govern; provided that nothing herein shall permit or require a party to act in contravention of any applicable law, rule, or regulation.

    Should any provision of this Agreement be deemed invalid, illegal, or unenforceable, it shall not affect the enforceability of any other provision of this Agreement. Rather, the invalid, illegal, or unenforceable provision shall be modified to the extent necessary so that it is valid, legal, and enforceable.

    A Party’s failure to enforce any provision of this Agreement shall neither be deemed a waiver of such provision nor of their right to enforce such provision. Each Party’s rights under this Agreement shall survive any termination of this Agreement. No waiver of any term or condition is valid unless in writing and signed by authorized representatives of both Parties.

  3. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the Parties. Except as stated herein or in an IO, neither Party shall have authority to contract for or bind the other in any manner whatsoever.
  4. Assignment. Neither Party may assign this Agreement without the written consent of the other Party, which shall not be unreasonably withheld. However, Pipeline360 may assign this Agreement without Marketer’s consent to an Affiliate or successor to all or part of Pipeline360’s business or assets.
  5. Entire Agreement. This Agreement and the applicable IO constitute the complete and exclusive statement of the Agreement between the Parties regarding the products and services defined herein and may only be revised by the written agreement of both Parties.

    This Agreement supersedes, and neither Party will be bound by, any “shrink wrap license” or any “disclaimers” or “click to approve” terms or conditions (“Online Terms & Conditions” or “Terms and Policies”) or any website which they use in connection with this Agreement, notwithstanding the fact that they may have to affirmatively accept such terms as a condition to access online services.

    Such Online Terms & Conditions are procedural only to establish the Parties in each other’s system such that the terms of each Party’s participation will be governed by this Agreement, and payout information will be as specified in the applicable IO.

  6. ACKNOWLEDGMENT. THIS AGREEMENT SHALL BE CONSTRUED WITHOUT REGARD TO THE PARTY OR PARTIES RESPONSIBLE FOR THE PREPARATION OF THE SAME AND SHALL BE DEEMED AS PREPARED JOINTLY BY THE PARTIES HERETO. ANY AMBIGUITY OR UNCERTAINTY EXISTING HEREIN SHALL NOT BE INTERPRETED OR CONSTRUED AGAINST ANY PARTY HERETO. THE LANGUAGE IN THIS AGREEMENT SHALL BE INTERPRETED AS TO ITS FAIR MEANING AND NOT STRICTLY FOR OR AGAINST ANY PARTY. EACH OF THE PARTIES STATES THAT IT HAS READ EACH OF THE PARAGRAPHS OF THIS AGREEMENT, HAS HAD THE OPPORTUNITY TO AVAIL ITSELF OF LEGAL COUNSEL OF ITS CHOICE DURING NEGOTIATIONS OF THIS AGREEMENT AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT UNDER NO DURESS AND THAT IT UNDERSTANDS THE SAME AND UNDERSTANDS THE LEGAL OBLIGATIONS THEREBY CREATED.

13. AGREEMENT TO CONDUCT BUSINESS ELECTRONICALLY

Each Party agrees to conduct business electronically with the other. Marketer acknowledges and agrees that by signing an IO with Pipeline360, Marketer is confirming and acknowledging that Marketer has accepted this Agreement. Marketer hereby waives any rights or requirements under any statutes, regulations, rules, or ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.