BY ACCESSING THE PLATFORM, USING, AND/OR CONTINUING TO USE THE DEFT SALES SERVICES, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY, OR, IF YOU HAVE NAMED A COMPANY AS CUSTOMER, ON BEHALF OF THAT COMPANY, AND TO BIND THE COMPANY YOU HAVE IDENTIFIED TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD NOT USE OR ACCESS THE PLATFORM OR THE DEFT SALES SERVICES.
1.1 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Platform and the Deft Sales Services pursuant to Customer’s rights under this Agreement.
1.2 “Confidential Information” means any and all information disclosed by either Party to the other which is designated as confidential, or which should otherwise be understood to be confidential. Confidential Information of SmartAsset shall include without limitation the Platform, the Deft Sales Services, and the Documentation. Confidential Information does not include information the receiving Party can demonstrate was: (a) publicly available through no fault of the receiving Party, or (b) obtained from third parties not under confidentiality restrictions.
1.3 “Customer Data” means any content, information or data that is supplied by Customer through the Deft Sales Services or is otherwise collected by SmartAsset on behalf of Customer.
1.4 “Documentation” means any and all materials provided by SmartAsset, relating to the Platform or the Deft Sales Services.
1.5 “Effective Date” means the date the Customer first accesses or uses the Deft Sales Services following the Last Updated Date specified above.
1.6 “Intellectual Property Rights” means any and all now known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.7 “Lead” means a prospective client of Customer.
1.8 “Platform” means the Deft Sales platform, which facilitates the Deft Sales Services.
1.9 “Deft Sales Services” means the services that SmartAsset provides to Customer via the Platform, which currently comprises of: (a) facilitating Customer’s initiation of texts, e-mails, and calls to Leads; (b) inputting Lead contact information into Customer’s customer relationship management software; (c) providing Customer with analytics and tracking of Lead generation campaigns; (d) integrating with Customer’s calendar software to effectively track meetings; (e) assisting Customer with tracking and archiving text messages for compliance purposes; and (f) providing Customer with support and resources to optimize Customer’s use of the Platform.
2. ACCESS; LICENSE; RESTRICTIONS.
2.1 Access. Subject to the terms and conditions of this Agreement, SmartAsset will provide the Deft Sales Services, including by giving Customer access to the Platform in connection therewith.
2.2 License Grant. Subject to the terms and conditions of this Agreement, SmartAsset grants to Customer a non-exclusive, non-transferable license during the Term (as defined below), solely for Customer’s internal business purposes to access and use the Platform in accordance with the Documentation. Customer may permit any Authorized Users to access and use the features and functions of the Platform as contemplated by this Agreement.
2.3 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Platform, Deft Sales Services, or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Platform, Deft Sales Services, or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Platform, Deft Sales Services, or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except as permitted by law; (e) interfere in any manner with the operation of the Platform or the hardware and network used to operate the Platform; (f) modify, copy or make derivative works based on any part of the Platform or Documentation; (g) access or use the Platform to build a similar or competitive product or service; (h) attempt to access the Platform through any unapproved interface; or (i) otherwise use the Platform, Deft Sales Services, or Documentation in any manner that exceeds the scope of use permitted under Section 2.1 or 2.2 or in a manner inconsistent with applicable law, the Documentation, or this Agreement.
3. INTELLECTUAL PROPERTY OWNERSHIP. The Platform, the Deft Sales Services, and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of SmartAsset and its suppliers. All rights in and to the Platform, the Deft Sales Services, and Documentation not expressly granted to Customer in this Agreement are reserved by SmartAsset and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Platform, the Deft Sales Services, the Documentation, or any part thereof.
4. CUSTOMER DATA. Customer grants SmartAsset a non-exclusive, worldwide, royalty-free, and fully-paid license to use the Customer Data (a) during the Term, for the purposes of providing the Deft Sales Services in accordance with the terms of this Agreement; and (b) during and after the Term, to use Customer Data in an aggregated and anonymized form to: (i) improve the Deft Sales Services and SmartAsset’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Deft Sales Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. Customer represents that it has all necessary rights, approvals and consents to make the Customer Data available to SmartAsset and that SmartAsset’s use of the same will not be unlawful or otherwise violate the rights of any third party.
5. CUSTOMER OBLIGATIONS. Customer acknowledges and agrees that it is solely responsible for: (i) the identification and selection of the Leads for the Deft Sales Services; and (ii) the initiation of calls and texts to Leads, including determining the content, timing and frequency of texts or calls, and deciding whether to initiate calls or messages to Leads via the Deft Sales Services. Customer represents and warrants that Customer shall: (a) provide up-to-date, accurate information when registering for the Platform and the Deft Sales Services, including a valid e-mail address and valid call-back number; (b) have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (c) identify the caller’s name, the Customer’s company name and and Customer’s contact information in any initial reach-out to Leads that is facilitated by the Deft Sales Services; (d) honor all opt-out requests and do-not-call requests from Leads; (e) refrain from contacting Leads prior to 8:00 AM or after 9:00 PM (based on local time at the Lead’s location) and comply with any more restrictive limitations on permissible times for making telemarketing calls or sending text messages imposed by applicable law in the Lead’s location; (f) obtain any additional consents that may be required to contact Leads; (g) institute procedures for maintaining a list of persons who request not to receive telemarketing calls (including text messages) by or on behalf of Customer, such procedures to include, at a minimum, the maintenance of a written policy, available upon demand, for maintaining a do-not-call list, the training of all personnel engaged in any aspect of telemarketing in the existence and use of Customer’s do-not-call list, the timely recording and honoring of all do-not-call requests made by Leads and the proper identification of individual callers, Customer and Customer contact information telemarketing calls; (h) use the Platform and the Deft Sales Services in accordance with the terms of this Agreement; (i) comply with recommended industry practices, including without limitation the policies and rules of the Wireless Association (CTIA); and (j) comply with applicable law and regulations (including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act, and applicable state telemarketing laws) in connection with its use of the Platform and the Deft Sales Services; and (k) refraining from disconnecting unanswered calls prior to at least fifteen (15) seconds or four rings. To the extent SmartAsset provides advice, guidance, templates, or suggestions via the Platform, the Documentation, the Deft Sales Services or otherwise, the foregoing are provided solely for convenience and SmartAsset does not assume any responsibility for Customer’s obligations under this Section, and Customer remains solely responsible for its own compliance. You should confer with your own independent legal counsel to determine whether any marketing activities and content are sufficient for your purposes and meet your obligations under applicable laws.
6. FEEDBACK. SmartAsset may periodically request that Customer provide, and Customer agrees to provide to SmartAsset, feedback regarding the use, operation, and functionality of the Platform or the Deft Sales Services (“Feedback”). Such Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features. SmartAsset is hereby granted a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable right and license to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and otherwise exploit the Feedback without restriction.
7. TERM AND TERMINATION.
7.1 Term. The Agreement commences on the Effective Date and remains in full force and effect while Customer uses the Platform and Deft Sales Services, unless terminated in accordance with the terms herein (the “Term”).
7.2 Termination of Agreement for Convenience. Either Party may terminate this Agreement upon sixty (60) days’ written notice to the other Party.
7.3 Termination of Agreement. Either Party may terminate this Agreement if the other Party has materially breached this Agreement in any way, and fails to cure such breach within thirty (30) days of notice of such breach.
7.4 Effects of Termination. Upon termination of this Agreement for any reason: (a) the rights granted to Customer hereunder will immediately terminate; (b) Customer shall immediately discontinue any use of the Platform and the Deft Sales Services and shall return or destroy all Documentation under its control; (c) each Party shall promptly return or destroy all Confidential Information and property of the other Party; and (d) Sections 1, 2.3, 3, 4, 5, 6, 7.4, and 8-11 shall survive.
8.1 Non-Use and Non-Disclosure. Each Party agrees: (a) to use Confidential Information of the other Party solely in accordance with the provisions of this Agreement; and (b) not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information of the other Party to any third party without the other’s prior written consent. Each Party shall safeguard the Confidential Information of the other Party using the same measures it uses to protect its own Confidential Information, but in no event shall either Party use less than reasonable care in safeguarding the Confidential Information of the other Party. Either Party may disclose Confidential Information of the other Party which is required to be disclosed by law or order of a court or other governmental entity; provided that such Party provides the other Party with prompt notice of such requirement, assists the other Party in seeking a protective order or other protection, and only discloses that portion of the Confidential Information that is required to be disclosed, and provided further that any information so disclosed retains its confidentiality protections for all other purposes.
8.2 Remedy. If either Party breaches, or threatens to breach the provisions of this Section 8, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
9.1 By Customer. Customer will indemnify and defend, at its expense, any claim, action or suit brought against SmartAsset (including reimbursement of SmartAsset’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to: (a) Customer’s breach of Section 5 hereunder; or (b) Customer’s use of the Deft Sales Services.
9.2 By SmartAsset. SmartAsset will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement SmartAsset makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Platform infringes such third party’s patents, copyrights or trade secret rights under applicable laws of the United States of America. If any portion of the Platform becomes, or in SmartAsset’s opinion is likely to become, the subject of a claim of infringement, SmartAsset may, at SmartAsset’s option: (a) procure for Customer the right to continue using the Platform; (b) replace the Platform with non-infringing software or services which do not materially impair the functionality of the Platform; (c) modify the Platform so that it becomes non-infringing; or (d) terminate this Agreement, and upon such termination, Customer will immediately cease all use of the Platform and Documentation. Notwithstanding the foregoing, SmartAsset will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Platform not in accordance with this Agreement; (ii) any use of the Platform in combination with other products, services, software or data not supplied by SmartAsset; or (iii) any modification of the Platform by any person other than SmartAsset or its authorized agents.
9.3 Indemnification Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. WARRANTY DISCLAIMER, RESPONSIBILITY AND LIMITATION OF LIABILITY.
10.1 WARRANTY DISCLAIMER. THE PLATFORM, SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CUSTOMER USES THE PLATFORM, DEFT SALES SERVICES, AND DOCUMENTATION AT ITS OWN RISK. SMARTASSET MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE PLATFORM AND THE DEFT SALES SERVICES AND DOCUMENTATION INCLUDING THEIR COMPLIANCE WITH APPLICABLE LAW, CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, AND SMARTASSET SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SMARTASSET MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE DEFT SALES SERVICES WILL RESULT IN SUCCESSFUL CONVERSION OF LEADS OR OTHERWISE ACHIEVE SUCCESFUL RESULTS FOR CUSTOMER.
10.2 RESPONSIBILITY FOR USE. CUSTOMER, AND NOT SMARTASSET, SHALL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF THE PLATFORM AND THE DEFT SALES SERVICES, INCLUDING ANY USE OF THE RESULTS OF THE DEFT SALES SERVICES. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ITS INTERACTION WITH LEADS, INCLUDING WITHOUT LIMITATION THE CONTENT AND TIMING OF ITS LEAD OUTREACH. SMARTASSET SHALL HAVE NO LIABILITY IN CONNECTION WITH CUSTOMER’S INTERACTION WITH ANY LEADS.
10.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL SMARTASSET BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR USE OR LOSS OF DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SMARTASSET’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $1,000, WHETHER AN ACTION IN CONTRACT, TORT, OR OTHERWISE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
11. GENERAL PROVISIONS.
11.1 Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except that SmartAsset may assign this Agreement in connection with any sale of SmartAsset or all, or substantially all, of its assets. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
11.2 Entire Agreement. This Agreement is the Parties’ entire understanding regarding its subject matter and supersedes all other oral or written agreements as to such subject matter. The Platform Participation Agreement between the Parties is separate and independent to this Agreement. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of each Party.
11.3 Notices. A communication intended to have legal effect under this Agreement must be written and delivered to (a) SmartAsset, to the attention of Legal, at 122 E 42nd Street, Suite 4300, New York, NY 10168, or (b) Customer at the information provided on the Platform. If a Party provides an e-mail address for notice, such Party consents to receive communications electronically.
11.4 Independent Contractors. The Parties’ relationship is that of independent contractors, and this Agreement does not create a joint venture, partnership, principal-agent, solicitation, or employment relationship between the Parties. Neither Party will have, or represent to a third party that it has, the authority to act for or bind the other Party.
11.5 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto.
11.6 Severability. Any provision of this Agreement found invalid or unenforceable will be restated to reflect the original intent as closely as possible in accordance with applicable law. The invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provisions.
11.7 Force Majeure. Neither Party will be liable for a failure to fulfill its obligations due to causes beyond its reasonable control that cannot be mitigated through the exercise of due care.
11.8 Governing Law and Venue. This Agreement, including its formation, will be governed and interpreted according to the laws of the State of New York without regard to its conflicts of laws provisions that would require a different result. A cause of action relating to this Agreement may only be brought in the state or federal courts in New York County, New York. THE PARTIES IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY OR CLASS ACTION AND CONSENT TO HAVE ANY DISPUTE HEARD AND DETERMINED BY A BENCH TRIAL PRESIDED OVER BY A SINGLE JUDGE.
11.9 Waiver. A Party’s waiver of a breach of this Agreement will not waive any other or subsequent breach.
[End of Agreement]
Last Updated Date: 5/3/2023