Terms and Conditions
The following terms and conditions together with the order form to which this document applies by reference from such order form (the “Order”) set forth the agreement between Demand Science US, LLC (the “Provider”) and the customer identified in the Order (“Customer”), and the applicable Order and this document are collectively referred to herein as the “Agreement”. If Customer and Provider are parties to a separate master agreement covering the services under the Order, the terms of such agreement control over those set forth here.
1.Services.
1.1.Customer engages the Provider to perform the lead generation, demand generation, digital audience building, account-based marketing or other related services (the “Services”), as indicated in the Order, and Provider agrees to perform such Services.
1.2.If a written statement of work is applicable with regard to particular Services, as may be referenced in the Order, such statement of work (the “SOW”) is also subject to the terms and conditions of this Agreement and further describes the Services and terms and conditions applicable thereto.
1.3.Depending on the Services ordered, additional specific terms may be applicable and will be as set forth in the relevant annex to this Agreement (each an “Annex”), the terms of which are available at https://demandscience.com/terms-and-conditions/. All terms in any applicable Annex are deemed incorporated herein by this reference.
1.4.If there is a conflict between the terms of the Order, this Agreement, and any other documents referenced herein, the terms of the documents will prevail to the extent of the inconsistency, in the following order of precedence: (1) the Order; (2) the Annex; (3) this Agreement; (4) any other documents referred to in this Agreement or the Order.
1.5.With respect to any Services, Customer expressly acknowledges that Provider is agreeing to provide the Services as indicated in the Order and this Agreement, and, if applicable, the relevant SOW and/or Annex, all as specifically described herein and therein, including with regard to the precise scope of work/services as so indicated.
1.6.Customer acknowledges that successful completion of agreed upon work and meeting agreed upon deadlines are contingent upon Customer’s timely provision of necessary information and other supporting resources requested or required by Provider.
1.7.Customer acknowledges that, in some limited circumstances, Provider may make available to Customer the purchase of certain Services provided by a third-party vendor who has authorized Provider to resell such Services. In the event the Order contemplates Provider’s resale of such third-party vendor Services to Customer, Customer acknowledges that each such third-party Service shall be subject to the applicable governing terms and conditions offered by the third-party vendor (“Third Party Agreement”). Customer agrees to comply with such Third Party Agreement and, and if Provider so requests, Customer shall provide a copy of the fully executed Third Party Agreement to Provider.
1.8.The Services and Deliverables may interoperate with, connect to, or permit access to third-party products, services, software, integrations, applications, or content that are not owned or controlled by Provider (“Third-Party Services”). Client acknowledges and agrees that its use of any Third-Party Services is at Client’s sole discretion and risk. Provider does not control and is not responsible for the data protection, security or data privacy practices, or availability of any Third-Party Services. Any personal data or other information processed by a Third-Party Service shall be governed solely by the applicable third party’s terms, policies, and practices, and not by this Agreement.
1.9.Provider’s Ionic portal provides access to summary reporting related to the lead generation, demand generation, account-based marketing and other related services, a Buyer Intelligence Report, and other functionalities. Use of Ionic is subject to these standard terms and conditions, or any other negotiated standard terms between Customer and Provider. In addition, by accessing the Ionic solution, Customer agrees to the terms contained in the Ionic Terms of Service, and consents to Ionic’s operation and collection of data. To the extent any terms contained in the Ionic Terms of Service differ from the terms of this Agreement, the Ionic Terms of Service shall control with respect to Ionic. Customer agrees that it is responsible for its users to comply with all obligations and restrictions contained in this Agreement.
1.10.Provider reserves the right to modify, replace, or discontinue any specific feature, functionality, or component of the Services at any time. In the event that Provider intends to deprecate or discontinue a Service, Provider will provide Customer with at least sixty (60) days’ prior written notice. In the event of a Service deprecation, Provider may (i) offer a successor product or service with substantially similar functionality, or (ii) provide Customer with a pro-rata refund of any prepaid, unused fees for the remainder of the then-current Term.
2.Leads and Deliverables.
Customer acknowledges that Provider has in its possession prior to performance of the Services hereunder certain databases and other lists of contact information for various persons and companies that it has acquired or developed (collectively, “Provider Contact Information”). In the course of performing certain of the Services, Provider will leverage Provider Contact Information to provide Customer the specific contact information of certain persons, derived from the Provider Contact Information, and the fact that Provider has determined, through the Services, that such person with such contact information, has certain characteristics (such as interest in Customer products and services) (“Leads”). Provider retains all right, title, and interest to the Provider Contact Information generally, and all proprietary information and intellectual property contained therein. It is understood by the parties that the specific contact information contained in the Leads is owned by the data subject to whom the contact information refers.
In the course of providing the Services, Provider may also deliver certain other materials to Customer, which may include, without limitation, reports, documents, data, tags, pixels, beacons, analysis, databases, or other materials (collectively with Leads, the “Deliverables”). Subject to Customer’s timely payment of all undisputed fees and reimbursable expenses, if any, owed to Provider in connection with the Services, and Customer’s ongoing compliance with all other terms and conditions of this Agreement, Provider hereby grants to Customer the non-exclusive, non-transferable right to use the Leads and Deliverables in connection with its business and to use the Provider Contact Information to the extent necessary to interact with, operate, or utilize the Leads.
Customer may not transfer Deliverables or related information to any third party without the prior written approval of Provider, except in the following limited circumstances: (a) where Customer has retained a third party to provide marketing services to Customer, Customer may provide Leads delivered by Provider hereunder to such third party agent, for use only consistent with the purposes for which the Lead was obtained by Provider, and provided Customer is not selling such Lead to the third party nor permitting its use for any other purpose; or (b) where Customer has itself been retained by a third party company (an “End Customer”) as a marketing agency, and Leads provided hereunder have been obtained for the benefit of such End Customer, Customer may provide the Leads to such End Customer. Notwithstanding the above, Customer is prohibited from: (a) selling or sharing the Leads; (b) retaining, using or disclosing the Leads for any purpose other than the purpose specified in this Agreement; (c) retaining, using or disclosing the Leads outside of the direct business relationship specified in this Agreement; and (d) combining the Leads received with personal information received from another business or that it collects itself (unless such combination is necessary for certain business purposes identified in the implementing regulations).
Provider acknowledges that the fact that a Lead is a “Lead” with respect to Customer, and the relevant information determined about that Lead in connection with Customer are Customer’s Confidential Information, as defined in Section 10 below, and will be subject to the terms of such Section 10.
Customer also acknowledges that in providing Services and/or creating Deliverables, Provider may utilize or provide to Customer certain proprietary material owned by Provider, including, but not limited to, existing data and gathered information, software, document forms, templates, techniques, tools, processes, inventions, technical data, research, trade secrets, ideas and concepts (the “Provider Proprietary Materials”). Provider shall retain all right, title, and interest to Provider Proprietary Materials, and all copies thereof, including all intellectual property rights (including, without limitation, patents, copyrights, trademarks, trade secrets) and other proprietary rights contained therein. Provider hereby grants to Customer a non-exclusive, non-transferable, license to use any Provider Proprietary Materials to the extent that such intellectual property is necessary to interact with, operate, or utilize the Deliverables.
3.Other Responsibilities.
3.1.Customer will apply reasonable administrative, technical, and physical measures to protect Deliverables from loss, theft or unauthorized access or use.
3.2.In its use of the Deliverables, Customer agrees at all times to comply with all applicable laws and regulations, including, but not limited to, all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, and any applicable privacy and data protection law or regulation, including but not limited to the EU General Data Protection Regulation (GDPR) and any implementing regulation thereof of any jurisdiction, the UK General Data Protection Regulation (UK GDPR) and any implementing regulation thereof, and any applicable data privacy law of the United States or any U.S. state, including but not limited to the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CPRA”), together, the “CCPA”, the CAN-SPAM Act, the Telephone Consumer Protection Act (the “TCPA”), Canada, including the Unsolicited Telecommunications Rule (the “UTR”) of the CRTC, or any other relevant jurisdiction, including any such laws applicable by reason of the location of a data subject to whom the Deliverable relates (collectively, “Data Privacy Laws”). Customer acknowledges that Provider may engage in certain telemarketing activities in the provision of the Services to Customer. Customer shall be responsible to ensure its compliance with Data Privacy Laws with respect to any further telemarketing activity it may engage in with respect to delivered Leads, including through the potential use of automated technology, SMS/MMS messages, AI generative voice, and prerecorded and/or artificial voice messages. Customer shall notify Provider if they cannot meet their obligations under the applicable Data Privacy Laws. Without limiting the foregoing, Customer acknowledges that, in transferring Leads to third parties consistent with the permissions granted in Section 2 of this Agreement, Customer is fully responsible to ensure compliance with Data Privacy Laws, and that Provider is not responsible for any breach of Data Privacy Laws resulting from such a transfer.
3.3.With respect to, and in connection with, certain Services, Customer may provide certain information and materials (“Materials”) to Provider to use as contemplated by this Agreement. If required Materials are not received by the Provider prior to the Order start date, Provider will begin to charge Customer on the Order start date on a pro rata basis based on the full Order for each full day the Materials are not received. If the Materials are late, Provider is not required to guarantee full delivery of the Order. Customer will be provided with a written summary of campaign requirements for review and approval. Customer shall approve (or request changes) within two (2) business days of receipt, after which period approval will be assumed. In the event of any delay in Customer’s performance of any of the obligations set forth in this Agreement or any other delays caused by Customer, Provider reserves the right to adjust the date (s) set forth in the Order Form to accommodate for such delays. The Parties agree to use their best efforts to resolve, through negotiation in good faith, adjustments for delays.
3.4.Subject to the terms and conditions set forth in this Agreement, Provider grants Customer a non-exclusive, non-sublicensable license during the term of the Order Form to embed Demand Science tags, pixels or beacons as may be provided under the Services in an HTML page on Customer’s web page, app, or other digital property under Customer’s control solely for use in conjunction with the Services. By installing Demand Science tags, pixels or beacons, Customer acknowledges that they agree to comply at all times with the terms and conditions of this Agreement. Customer also acknowledges that, from time to time, Provider may issue updates to the Demand Science tags, pixels or beacons (for example, to address security vulnerabilities, upgrade the protocol, improve usability or performance, and upgrade features). In such event, the version of the Demand Science tag, pixel or beacon that is running on the Customer’s HTML page will be automatically upgraded and Customer consents to such automatic upgrading. All updates to Demand Science tags, pixels and beacons will be subject to the terms and conditions of this Agreement.
3.5.In its provision of the Deliverables and performance of the Services, Provider agrees at all times to comply with all Data Privacy Laws as defined above.
4.Data Privacy Audit. Upon request, Customer will provide Provider with information reasonably needed to demonstrate compliance with the data privacy obligations in this Agreement and allow for (and contribute to) remote audits conducted by Provider or another auditor under the instruction of the Provider as may be required by the Privacy Laws.
5.Fees and Payment.
5.1.Customer shall pay to Provider all fees as indicated in the Order. Applicable state and local taxes are not included in the fees and will be calculated as of the date of the invoice(s) issued hereunder. If provided for in the Order, Customer will reimburse any expenses incurred by Provider that were approved by Customer, provided that Provider furnishes Customer with reasonable documentation supporting such authorized expenses. Provider will invoice Customer for Services provided and expenses incurred, and payment on any invoice shall be due and payable on such payment terms referenced on the Order, by credit card or via wire transfer. Any amounts remaining unpaid for more than net terms noted on the Order shall be subject to interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. Customer shall also be responsible for all costs and expenses incurred by Provider that are associated with the collection of any unpaid balance due Provider.
Should Customer require a Purchase Order (“PO”) for processing an invoice, Customer shall provide the PO Number to Provider either (a) in the Billing Instructions box in the Order; or (b) no later than fifteen (15) days from the Effective Date of the applicable Order to this Agreement. If a PO number is not provided, the remaining provisions of the Agreement shall remain enforceable to the fullest extent provided at law. For the avoidance of doubt, the payment terms provided in this Agreement shall apply and payment shall not be delayed based on any delays or failure of the Customer to issue a PO.
6.Term and Termination. This Agreement remains in effect as long as Provider is performing Services. Either Party may terminate this Agreement and the provision of Services at any time with thirty (30) days’ written notice to the other Party. Customer may also cancel provision of any particular program prior to the program start date with at least two (2) days written notice. Sections 2, 3, 5 and 7 through 15 of this Agreement shall survive termination. In the event either party is in material breach of this Agreement, the other party may terminate this Agreement and the provision of all Services hereunder (including under any SOWs) effective following thirty (30) days’ notice unless the breach (if capable of cure) is cured within such notice period.
7.Representations and Warranties. Provider represents and warrants that all Services shall be performed in a workmanlike manner in accordance with the description of such Services as set forth in the Order and SOW (if applicable). Provider commits to providing such Services but does not guarantee any specific results to be derived from such Services, such as a Lead showing interest in Customer’s products or services or responding to Customer’s marketing activities.
Provided that Customer provides written notice to Provider within fourteen (14) days after it becomes aware of a defect in Provider’s performance of the Services or in the Deliverables, or of any non-conformance with this warranty, Provider will attempt to correct any non-conformance within a reasonable time.
For a Lead to be eligible for replacement, requests must be submitted within 14 days of lead delivery and meet at least one of the following criteria:
1.The lead does not match the targeting criteria outlined at the start of the campaign;
2.The contact information (phone or email) is invalid;
3.The lead is a duplicate, meaning it was provided by Provider more than once during the same campaign or within the pre-determined deduplication window.
Notwithstanding the above, Provider is not responsible for any defect in Provider’s performance of the Services or in the Deliverables, or any non-conformance with this warranty caused in whole or in part by Customer’s delay in performing, or failure to perform any of its obligations under the Agreement with respect to any out of scope activities that are Customer’s responsibility (i.e., Customer’s campaign set up on integrated platforms).
In its performance of the Services, Provider may use artificial intelligence, machine learning and automated data processing technologies (“AI Tools”). All Deliverables created with the assistance of AI Tools shall be considered Provider-created Deliverables under this Agreement. Provider shall not knowingly use AI Tools in a manner that infringes the intellectual property rights of third parties.
Provider will not use Customer Data to train any AI Tool without Customer’s prior written consent.
Provider will maintain appropriate human oversight over AI-generated outputs to ensure accuracy, quality and alignment with objectives of the Services. Customer acknowledges that AI Tools may rely on probabilistic or automated processes and, accordingly, no warranty is given that all outputs will be free from error. Customer further acknowledges that Provider’s use of AI Tools may depend on the quality and completeness of Customer Data provided. Customer remains responsible for ensuring that any Customer Data is accurate, authorized and compliant with applicable laws.
Provider has used commercially reasonable efforts to implement safeguards consistent with industry standard in its use of AI tools. Except as expressly provided in this Agreement, Provider hereby disclaims any and all liability arising solely from the use of AI Tools in performance of the Services.
All warranties not expressly stated herein are disclaimed, including, without limitation, the implied warranties of non-infringement, merchantability and fitness for a particular purpose.
8.Mutual Indemnification. Customer shall indemnify, defend and hold harmless Provider, its affiliates, successor organizations, directors, officers, shareholders, partners and employees from and against any claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorney’s fees and court costs) (collectively, the “Claims”) arising out of (i) Customer’s use of Deliverables other than as permitted under this Agreement or (ii) Customer’s breach of Section 3 of this Agreement.
Provider shall indemnify, defend and hold harmless Customer, its affiliates, successor organizations, directors, officers, shareholders, partners and employees from and against any Claims arising out of (i) the violation or infringement of any third-party intellectual property or privacy rights by the Services or Leads or (ii) Provider’s breach of Section 3 of this Agreement.
An indemnified party shall: (a) promptly notify the indemnifying party of any Claim; (b) allow the indemnifying party to have control of the defense of the Claim and settlement thereof (provided that any settlement that obligates an indemnified party in any manner other than for the payment of money is subject to the indemnified party’s consent); and (c) cooperate reasonably with indemnifying party to facilitate such defense. An indemnified party may also participate in its own defense at its own expense.
9.Limitation of Liability. Except with regard to breach of confidentiality obligations, or in relation to indemnification obligations under Section 8 hereof, and without limiting Customer’s obligation to make payment of fees due hereunder: (a) in no event shall either Party, or such Party’s employees, contractors, representatives or agents, be liable for any indirect, special consequential, incidental or punitive damages, however caused and under any theory of liability, including, without limitation, claims based in contract, tort (including negligence claims) or product liability, regardless of whether such party was advised of the possibility of such damages and notwithstanding the failure of the essential purpose of any such limited remedy, arising from this Agreement, and (b) each Party’s maximum aggregate liability under or related to this Agreement shall be limited to the fees actually paid by Customer to Provider under this Agreement in the twelve (12) month period preceding the events giving rise to the relevant claim.
10.Confidential Information.
(a)Scope. In the course of performing each Party’s respective obligations under this Agreement, each party may be given access to certain materials and information (in tangible form, or which is demonstrated, displayed or disclosed orally) either identified by the disclosing party as confidential or proprietary in nature or which under the circumstances surrounding the disclosure ought to be reasonably understood by the receiving party as confidential (“Confidential Information“).
(b)Use and Protection. Confidential Information may only be used by the receiving party in connection with the Services and permitted use of Deliverables and may not be copied, reproduced or otherwise distributed or disclosed, revealed, divulged or otherwise communicated to any third party (other than its affiliated companies under common control, and its agents and subcontractors, on a need-to-know basis) without the prior written consent of the disclosing party. The receiving party shall protect the Confidential Information of the disclosing party in the same manner that it protects its own proprietary and confidential information of like kind, but in no event will it exercise less than reasonable care. The parties shall notify the other party promptly in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of Confidential Information that may come to the receiving party’s attention.
(c)Exceptions. Nothing in this Agreement shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) that (i) is or becomes publicly available through no fault of the receiving party, (ii) is independently developed by or for the receiving party or is already in the possession of that party, or (iii) acquired by the receiving party from a third party which is not, to the receiving party’s knowledge, under an obligation of confidence with respect to such information.
(d)Permitted Disclosures Notwithstanding the foregoing, a party may disclose the other party’s Confidential Information to such party’s directors, officers, employees, attorneys, auditors, insurers of it and its affiliated companies under common control who have a need to have access to such information and who are bound (by written agreement or professional code of conduct) by obligations to maintain the confidentiality of Confidential Information on terms no less protective than that set out in this Section 10; provided that in each case the disclosing party shall be responsible for all actions and omissions of such persons as if the action or omission were that of the disclosing party. In addition, a party may disclose Confidential Information if, in the written opinion of legal counsel, such disclosure is required by an applicable law, rule, regulation or order of a duly empowered government agency or a court of competent jurisdiction; provided that such disclosure may only be made after notice and a reasonable opportunity to intervene is given to the disclosing party, unless prohibited by law or court order.
(e)Return or Erasure of Confidential Information. Upon termination of this Agreement, or sooner if so requested, each party shall (a) return or, at the discretion of the disclosing party, destroy all Confidential Information and tangible copies thereof (as well as all summaries, memoranda, analyses, indices, correspondence, outlines or other mentions of such Confidential Information), and (b) erase, using best practices for erasure of electronic data erasure protection, every electronic copy format and media whatsoever. Neither party shall have an obligation to return or destroy Confidential Information stored in electronic backup systems for which retrieval or destruction would not be commercially practical, provided that such systems are not used to access the Disclosing Party’s Confidential Information and the terms of this Agreement will continue to apply to such Confidential Information stored in electronic backup systems. The obligations of this Section 10 will survive any termination or expiration of this Agreement and continue for a period of three years thereafter.
(f)Remedies. Each party acknowledges that disclosure or use of Confidential Information in violation of this Section 10 could cause irreparable harm to the disclosing party for which monetary damages may be difficult to ascertain or an inadequate remedy. Each party therefore agrees that the disclosing party will have the right, in addition to its other rights and remedies, to seek immediate injunctive relief for any violation of these confidentiality provisions without posting bond, or by posting bond at the lowest amount required by law.
11.Independent Contractor Relationship. The relationship of Provider and Customer is that of independent contractors, and nothing in this Agreement shall be construed as creating any agency, employment, partnership, fiduciary, joint venture or any other relationship between Customer and the Provider or between any of such party’s employees and those of the other party. Neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. There are no third party beneficiaries to this Agreement.
12.Notices. Any notices that a Party may make to the other pursuant to the terms of this Agreement shall be in writing and shall be sent to the other Party by certified or registered mail, overnight delivery to the address listed on the relevant Order Form, or by email to the following emails address:
For Provider: [email protected]
For Customer:
Questions regarding privacy, or to report a potential privacy or security incident or otherwise make a complaint, should be directed to:
For Provider: [email protected]
For Customer:
All notices are effective when received by the Party to whom notice is served. A Party may further update the address or email address of record by sending written notification of the change to the other Party.
13.Publicity. Demand Science may use Customer’s name or logo in any other standard marketing materials (including, without limitation, online or print-based lists, quotes, case studies, and video testimonials) without the advance authorization from Customer.
14.Force Majeure. This Agreement and the Parties’ performance hereunder are subject to all contingencies beyond the Parties’ reasonable control, including, without limitation, force majeure; strike; lockouts; labor disputes; floods; civil commotion; riot; war; acts of terrorism; acts of God; rules, laws, orders, restrictions, embargoes, quotas or actions of any government, foreign or domestic or any agency or subdivision thereof; casualties; fires, or accidents. In any such event, the Party not subject to force majeure (or either party, in the event that both are affected) shall have the right, with written notice to the other Party, in its sole discretion and without any liability to the other Party, to cancel or suspend all or a portion of the provision of Services, and require performance by the other Party after the cause(s) for such nonperformance or delay have ended.
15.Miscellaneous Terms. Rights and obligations hereunder shall not be assigned or otherwise transferred by a party without the prior written consent of the other, except (a) to one of its parents, subsidiaries, or affiliates, (b) in connection with a merger, consolidation acquisition or corporate re-organization, or (c) to a third party acquiring all or substantially all of the party’s assets so long as such successor is not considered a competitor to Provider, in Provider’s sole discretion. In the event of (a), (b), or (c) the assigning party will provide timely written notice to the other party.
This Agreement and any SOW shall bind and inure to the benefit of the successors and permitted assigns of the parties. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles.
The waiver by either Party of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any provision. In the event any term or provision of this Agreement shall be determined by a court of competent jurisdiction to be void or unenforceable, such provision shall be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of such enforcement, shall be deemed severed and deleted from this Agreement while the remaining terms and provisions of this Agreement shall remain in full force and effect. This Agreement together constitutes the entire agreement of the Parties pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, and understandings of the parties, written or oral (unless the parties have entered into a master agreement covering the subject matter, as indicated above). This Agreement may be amended or modified only in a writing signed by both Parties.
The Order may be executed in counterparts (including by facsimile), which, taken together, shall constitute one and the same original document.