Additional Terms For Agency Users
This Agency Membership Agreement (“Agreement”) is a mutual agreement between you (“Agency”) and The Reiter Group LLC dba CloudTask (“CloudTask”), a Florida Limited Liability Company, with offices at 1940 NE 194 Drive, Miami Beach, FL 33179, USA and you, the buyer or recipient of leads or services (“You” or “Your” or “Agency”). Acceptance of these Standard Terms is a condition to Your use of any Leads or Services (as such terms are defined below) provided by CLOUDTASK to You, and You covenant, represent, and warrant that You have the right and authority to enter into this Agreement on behalf of Agency. BY ACCESSING OR USING THE SERVICE YOU ARE AGREEING TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS MAY BE MODIFIED FROM TIME TO TIME, AS PROVIDED BELOW.
Client Conversion Program
Some buyers from the CloudTask Marketplace will enroll the assistance of a CloudTask Campaign Advisor to facilitate the process of contracting one or more Agencies that will manage their outsourced sales campaign(s).
Approved Agencies members, designated as Prime Members, will be eligible for this Client Conversion Program and, as such, can be matched with buyers that will contract and pay the Agency through CloudTask. Engagements related to the Client Conversion Program will be governed by the terms set forth in this section.
As used in this Agreement, the following terms shall have the following meanings:
- Buyer(s): Buyer(s) means, any company or entity that has indicated an intention to purchase services through CloudTask, is specified in any CloudTask purchase agreement, or is the recipient of services specified in a CloudTask purchase agreement.
- Purchase Agreement(s): A purchase agreement means the form(s), no matter the title, evidencing the Service Fee, Service Terms and Duration of the Service(s) and any subsequent purchases requested in the transaction. [See Appendix Item A for example]
- Agency: Agency users are independent professionals who offer to perform B2B lead generation and sales services for Buyers directly and not for or to CloudTask. They are not employees or agents of CloudTask, which is merely a marketplace for businesses to find and hire Agencies.
- Poor Performance: Poor Performance means failure of Agency or Buyer to properly meet the expectations of the Purchase Agreement in a competent manner.
Relationship Of Parties
The relationship of Agency to CloudTask is that of an independent contractor. Agency shall not represent itself as having any authority; either expressed or implied, to make any commitments, promises, or contracts on behalf of CloudTask. All of the costs incurred by Agency in the provision of services (as indicated on the Purchase Agreement) to CloudTask Buyers shall be the sole responsibility of Agency. Nothing herein entitles Agency to have any exclusive rights to any services offered by CloudTask, or any such services sought by CloudTasks’ Buyers. Agency recognizes that CloudTask may choose to work with a number of different companies for the services indicated on the Purchase Agreement, in any region, including a region Agency is serving, without in any way violating this Agreement.
Agency Users must comply with and promptly provide, complete and up-to-date information on the Services at all times.
Any Agency User must ensure that their services are in full compliance with all applicable laws and regulations. CloudTask does not assume responsibility for ensuring that Agency User meets applicable legal requirements. Rather, CloudTask relies primarily on its Agency Users to ensure that the Campaign is compliant. To the extent that Agency makes any of their own compliance decisions, with the consent of the Buyer, Agency must comply with the law.
CloudTask will not assume any liability if Agency User or a Buyer suffers any loss due to an actual or alleged law violation. Notwithstanding the foregoing, Agency User acknowledges that CloudTask has and is taking active steps to ensure the compliance of its vendors and affiliates, including by having Agency agree to these terms and otherwise.
Notwithstanding anything contained herein to the contrary, Agency shall indemnify and defend CloudTask (including for its attorney’s fees) from and against any actual or alleged TCPA or other law violation related to Agency’s Services provided hereunder.
To the extent allowed by law, Agency shall at all times be a 1099 independent contractor of CloudTask, and not of the Buyer, and shall not be an employee, co-venturer or co-owner of either. Agency shall take all necessary steps to file appropriate tax statements and will cooperate with Hiring Company and CloudTask as necessary to facilitate any necessary filings on Agency User’s behalf. Agency will not work more hours than would be permitted for an independent contractor in the jurisdiction in which Agency resides or performs the services.
Agency shall not represent itself to be CloudTask, or use the CloudTask name, logos, trademarks, or other corporate identification marks without prior, written consent from CloudTask. Agency acknowledges CloudTask’s exclusive right to its trade name and all related names, logos, trademarks and confidential documents. Nothing herein conveys any exclusive rights or representation to Agency, and the parties acknowledge and agree that CloudTask, in its sole discretion, may elect to provide part or all of the services, which are the subject of this Agreement directly to Buyers without using Agency or by using other service providers.
Agency Service Obligations
Agency certifies that they have truthfully represented all qualifications and experience to CloudTask, and that they have never been convicted of a crime of fraud or dishonesty, or any felony of any kind, within 10 years preceding or during the time in which work is performed for CloudTask’s Buyers.
Contact records received by Agency from CloudTask, and/or from CloudTasks’ Buyers, for the purpose of performing services indicated in the Purchase Agreement, shall be governed by these Terms.
Agency shall ensure that at all times, any and all services it provides to any Buyers from CloudTask are upon receipt of a Purchase Agreement from CloudTask, and that all such services are performed to the highest levels of diligence, professionalism and data security standards.
Agency agrees to personally perform services for any CloudTask Purchase Agreement under which the Agency is working.
Agency agrees that all services performed under a CloudTask Purchase Agreement will be performed in a professional, workmanlike and timely manner and that Agency will timely deliver to Buyer any agreed upon materials. If an Agency accepts a meeting or a task from a Buyer and does not appear for the meeting or task, or disappears from a task without providing notice to the Buyer, CloudTask reserves the right to temporarily or permanently block the Agency’s access to the CloudTask platform.
Agency is solely responsible for ensuring that delivery of services to CloudTask Buyers fulfills the expectations advertised by Agency and defined in the Purchase Agreement for the entirety of the Agreement term.
Agency will properly document, process and honor all opt outs and transmit the same back to the relevant Buyer.
Agency will adhere to the guidelines provided by Buyer when performing services on a Buyer’s behalf, so long as the same complies with the law.
Agency will at all times act in a professional manner while performing services on behalf of CloudTask’s Buyers and not use profanity, vulgarity, or any inappropriate, discriminatory inflammatory, harassing or offensive statements of any kind.
Agency will not request or obtain any sensitive or personal or protected financial or health information, including without limitation any credit card number, unless authorized by law and by the Buyer.
Agency will accept, record and transmit to the Buyer, any internal opt-out Agency receives, and shall never call such individuals again on behalf of that Buyer.
CloudTask shall not be liable for any accident occurring at Agency User’s location of work or any conduct of Agency User and Agency User shall obtain, prior to performing any services for CloudTask’s Buyers, commercially reasonable general liability insurance with a policy limit of at least $1,000,000 and shall list CloudTask as an additional insured on any such policies. Agency User shall provide CloudTask with documentation demonstrating such insurance is in place, upon request.
In the event of a billing dispute between Agency and CloudTask, Agency agrees to make its best effort to resolve the dispute without interruption to service for up to 20 calendar days after the scheduled payout date. If the dispute has not been resolved by the 20th day, Agency has the right to suspend services until resolution has been achieved.
Service Fees Charged to Agencies
If a Buyer chooses to engage an Agency and the Agency accepts the engagement, CloudTask will keep 15% of the monthly contract value, as defined in the Purchase Agreement, each pay period, for use of the CloudTask Website, Services, and Applications and disburses the rest to the Agency. Any monies collected from the Buyer on behalf of the Agency above and beyond that 15% will be passed through in full to the Agency. Where applicable, CloudTask may also collect taxes (such as value added tax (VAT) in Europe).
Disbursements to Agencies
All payments from Buyers are due before the start of work. Once payment is processed and cleared any such payments owed to the Agency shall be processed and disbursed to the Agency's business banking account within 3-5 business days.
CloudTask shall pay Agency in accordance with Agency pricing (provided to CloudTask by Agency). CloudTask shall ensure that its charges and invoices are in accordance with Agency pricing, and no extra costs or expenses shall be included therein unless expressly authorized by Agency in writing.
Payment by CloudTask shall be made in accordance with the terms and conditions of CloudTask Services, as outlined in the “Purchase Agreement,” and only upon full compliance by Agency with all terms and conditions of service, reports, billing and other applicable provisions of this Agreement.
Notwithstanding any other provision of these Terms of Service, and except as prohibited by applicable law, if CloudTask determines that an Agency has violated these Terms of Service or any other conditions and restrictions of the CloudTask Website, CloudTask Services or any CloudTask Application, CloudTask may hold the disbursement of fees to the Agency.
Additionally, CloudTask may hold the disbursement of fees to Agency if: (a) we require additional information before we may lawfully release funds, such as tax information, government-issued identification, address, or date of birth; (b) we have reason to believe the fees due may be subject to a dispute or chargeback; (c) we suspect fraud or have proof that the Agency has committed actual fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under a CloudTask Purchase Agreement, these Terms of Service or other terms of service to which Agency and/or Buyer is a party; (e) we deem it necessary in connection with any investigation; or (f) required by applicable law.
In cases of fraud, abuse, or violation of the Terms of Service, CloudTask reserves the right to revoke any payments and hold all fees otherwise due to Agency (not just the fees due to the Agency under the specific CloudTask Purchase Agreement(s) being investigated) unless prohibited by applicable law.
Additionally, CloudTask reserves the right to seek reimbursement from the Agency, and Agency will reimburse us, if we suspect fraud or criminal activity associated with your payment, withdrawal, or campaign for which you were engaged by a Buyer; if we discover erroneous or duplicate transactions; or if we have supplied our services in accordance with these Terms of Service yet we receive any chargeback from the payment method used by you if you are a Buyer, or used by your Buyer if you are a Agency.
Agency agrees that CloudTask has the right to obtain such reimbursement by charging any accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your payment method, or obtaining reimbursement from you by any other lawful means. Failure to pay for reimbursements of chargebacks is cause for termination of your User Account and revocation of your access to CloudTask Services and Applications.
CloudTask shall not be obligated to disburse funds that are payable to an Agency for an engagement prior to when the Agency’s Service Fees are due and payable from the Buyer. Agencies shall not be entitled to receive interest or other earnings on any funds held by CloudTask prior to disbursement to Agencies.
AGENCIES THAT ARE NOT CLOUDTASK PRIME MEMBERS, HAVE NO RECOURSE AGAINST CLOUDTASK FOR NON-PAYMENT OF CONTRACTOR SERVICE FEES BY BUYER. PLEASE ALSO SEE SECTIONS 11 (NO WARRANTIES) and 12 (LIMITATION ON LIABILITY) WHICH PROVIDE AMONG OTHER THINGS THAT CLOUDTASK DOES NOT WARRANT OR GUARANTEE PAYMENT BY BuyerS OR THAT THE CLOUDTASK WEBSITE, SERVICES AND APPLICATIONS WILL BE WORKING, AND IN WHICH YOU AGREE THAT CLOUDTASK WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES INCURRED FOR ANY REASON INCLUDING NON-PAYMENT AND INABILITY TO USE THE CLOUDTASK WEBSITE OR ANY CLOUDTASK SERVICES OR APPLICATIONS.
Either party may terminate this agreement by providing a written 30-day notice to the other party. Upon notice, any work for which Agency had already been engaged by CloudTask can be terminated at the discretion of CloudTask. Agency will ensure the timely and proper completion of work.
Without prejudice to the foregoing, CloudTask may terminate this Agreement at any time or for non compliance with the requirements as defined in the relevant Purchase Agreement by giving Notice of Termination at any time for any reason such as poor performance.
Mutual Non-Disclosure And Confidentiality
During the period of this Agreement, CloudTask and Agency may disclose to each other certain confidential information which may consist of but shall not be limited to, trade secrets, Buyer lists, technical information, proprietary information which relates to Disclosing Party’s business (including without limitation, business plans, financial data, Buyer information, marketing plans, missions and activities, competitive strategies, statistical information, research and development, transactional information, software development plans and inventions (whether or not patentable), information from results of operations, as well as other proprietary and confidential information (hereinafter “Confidential Information”).
CloudTask and Agency recognize that such Confidential Information is a valuable, special and unique asset to both entities which may provide to CloudTask and Agency with a significant competitive advantage and both parties understand and acknowledge that the disclosure of any such Confidential Information to unauthorized individuals and/ or companies will prejudice the ability to either entity to conduct its business successfully. In consideration of the willingness of both CloudTask and Agency to disclose certain Confidential Information to each other, both parties hereby agree to receive and retain the Confidential Information in strict confidence and to use the Confidential Information only in the furtherance of the business relationship between the parties to this Agreement.
Without the prior written consent from one another, CloudTask and Agency will not:
- Disclose any Confidential Information to any third party or entity nor give any third party or entity access thereto;
- Use any Confidential Information in any manner except of the express business purpose and relationship between Manufacturer and/or;
- Disclose to any third party entity the fact that Confidential Information is being made available to both parties.
Both CloudTask and Agency further agree to make no other use of the Confidential Information, to make the Confidential Information available only to its employees and those with a need to know in order to perform their duties in connection with the limited purposes of this Agreement. The prohibition against disclosure of Confidential Information will survive the termination or expiration of any business relationship between CloudTask and Agency for a period of three (3) years.
Both CloudTask and Agency acknowledge and agree that money damages will not be a sufficient remedy for any breach of this prohibition on disclosure of Confidential Information. Both Parties will ensure that all of its employees, agents or representatives who come into contact with either entity, its business or Confidential Information, will execute this Agreement, and agree to be bound by the terms herein.
The terms and provisions of this Section shall survive the expiration or termination of this Agreement, and shall remain in full force and effect and bind the parties hereto from the date of execution hereof and for three (3) years from the termination of this Agreement.
(a) The fees charged by CloudTask are the primary consideration received by CloudTask for providing, maintaining and servicing the CloudTask Services and Applications. Except as otherwise provided in the following Section (b), you agree to take no steps to circumvent CloudTask’s entitlement to and receipt of the fees to which it is entitled.
Accordingly, except as provided in Section (b) of this section, Agency agrees that it must use CloudTask Website, Services and Applications as the sole and exclusive method to retain a Buyer identified though the CloudTask Online Marketplace. By way of illustration, you may not: (i) submit proposals or solicit parties identified through CloudTask Services to contract, deliver services, invoice, or receive payment outside the Services; or (ii) invoice or report on CloudTask Services, request an invoice or payment amount lower than that actually communicated in a CloudTask Purchase Agreement.
(b) Notwithstanding the limitations set forth in the foregoing Section (a), Agency agrees that for each Buyer identified through CloudTask Services that Agency accepts work from outside of the CloudTask Services Terms in violation of this Section, Agency shall pay CloudTask a one-time payment of $3,000. Agency agrees that we have the right to obtain such payment by charging any accounts you hold with us, offsetting any amounts determined to be owing, deducting amounts from future payments or withdrawals, charging your payment method, or obtaining reimbursement from you by any other lawful means. Failure to pay this fee is cause for termination of your User Account and revocation of your access to CloudTask Website, Services and Applications.
(c) Agency understands and agrees that CloudTask has no ability to independently monitor the independent activities of Buyers and Agencies outside the CloudTask platform. Thus, Buyer agrees that the provisions of Section (b), including the $3,000 fee, shall apply under the following circumstances: (a) if Agency requests a meeting with Buyer and provides a link to schedule a that meeting outside the CloudTask Service; or (a) if Buyer interviews an Agency through the CloudTask Service but the Agency is not responsive to their CloudTask representative post-interview.
You agree to promptly notify CloudTask if another User improperly contacts you or suggests making or receiving payments outside of CloudTask Services. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to CloudTask by sending an email message to: firstname.lastname@example.org.
This Non-Solicitation section applies to both CloudTask and Agency and shall remain in full force and effect throughout the duration of this Agreement and for a period of an additional twelve (12) months from the termination date of this Agreement.
CloudTask, Agency, its agents, employees and representatives shall not solicit or refer to others of CloudTask and Agencies, Buyers, employees, or business contacts for any purpose which is competitive with both entities, its business, services, and products without the prior written authorization of CloudTask or Agency.
Further, CloudTask, Agency, its agents, employees and representatives shall not sell or agree to sell any services directly or indirectly or agree to provide any services similar to those in the Agreement to any Buyer of both parties or any potential Buyers or the use of either entity's services.
CloudTask, Agency, its agents, employees and representatives agree that they will direct any inquiries or requests for information by any Buyers only to each other.
Without prejudice to the foregoing, Agency, its agents, employees and representatives, shall have the right to conduct business with departments and franchises of the same group of companies, that are not directly related to or actively in business with CloudTask.
Agency agrees, that in order to cite as evidence appropriate safeguards with respect to the protection of privacy of CloudTask under this Agreement, to adhere to provisions of the Data Protection Agreement between CloudTask and its Buyers. Agency further agrees that CloudTask shall have the right to collect and use any and all lead information and that CloudTask is the sole owner of all onboarding materials.
Agency shall perform the services in a professional, courteous and businesslike manner and to the specification as defined in the attached Purchase Agreement. Failure to comply with this clause may result in termination of this Agreement pursuant to Section six (6) Termination.
Agency and CloudTask will save each other harmless of any and all liabilities as a result of claims, demands, costs including attorney’s fees, which may result from any act of its officers, directors, agents or employees in performing its obligations under the terms of this Agreement or which may result from its breach of any of the terms and conditions of this agreement.
This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument duly executed by the parties hereto. All clauses and covenants contained in this Agreement may be severed and in the event, any of them is held to be invalid by any court, this Agreement shall be interpreted as if such invalid clauses and covenants were not contained herein. Captions and headings are for convenience only and shall not modify, abrogate or otherwise affect the terms and provisions herein. This Agreement will be construed according to the laws of the State of Florida. This Agreement has been entered into as a result of a fully negotiated and bargained exchange, and neither party shall be deemed the drafting party for purposes of interpreting the Agreement, or ambiguities if any against the drafter.
This Agreement may be executed in counterparts, and the combined signature pages so executed will operate as one fully executed Agreement. Signatures will be valid if exchanged by facsimile, electronic mail, or other means regularly employed for exchanging signatures on Agreements in the industry.
Lead Acquisition Program
CloudTask service (“Services”) does not perform sales services for buyers directly, but rather provides an Online Marketplace that empowers a global community of Company Users (“Buyers”) and Agency Users (“agencies”) to find, sign and collaborate with each other on B2B lead generation and sales campaigns through the CloudTask Website (www.cloudtask.com), the CloudTask Services, and CloudTask software applications (“Applications”).
Agencies at all membership levels will be eligible for the Lead Acquisition Program and, as such, may at no charge register, create a User Account, highlight your Agency’s capabilities, portfolio and experience, indicate types of campaigns you are interested in, receive project notifications and utilize the CloudTask Website, Services, and Applications to create sales relationships with Buyers using the CloudTask Website (www.cloudtask.com), the CloudTask Services, and CloudTask software applications (“Applications”). Engagements related to the Lead Acquisition Program will be governed by the terms set forth in this section.
Lead Generation and Delivery
Cloudtask shall collect information regarding Buyers that may be interested in being matched with Agency for the purposes of obtaining sales qualified leads (each, a “Lead”) and may deliver Leads to Agency (the “Services”). Such information shall include, but may not be limited to, the following with respect to each Lead: email address, phone number, street address, city, state, and zip code.
Agency shall receive a username and password to a CloudTask customer self-service interface (“Portal”), allowing 24 hour access to all Leads. The Portal is a web page or cellphone app based interface available to Agency through which (i) updates to these Standard Terms may be provided; (ii) Agency may manage campaigns; (iii) Agency may update, adjust and maintain “Agency Information”, which shall include ideal Buyer profile details, payment information, and volume parameters; and (iv) Agency may view information about Leads received by Agency. CloudTask will deliver Leads as requested by Agency in the Portal. Please note that CloudTask does not guarantee continual delivery by Agency’s preferred methods.
Agency may dispute Unqualified Leads (as defined below) within three (3) days of receipt (the “Dispute Period”) to receive credit for such Unqualified Leads. All Unqualified Leads not returned within the Dispute Window shall be deemed qualified and payment shall be due in full. For purposes of this Agreement, the defined term “Unqualified Lead” shall mean any leads returned for invalid contact information (phone number or email address). All Unqualified Lead disputes are subject to review by CloudTask for approval or denial. Upon receiving notice of termination, all Leads delivered to Agency will be deemed qualified.
Use of Leads
Leads and the related Services are provided by CloudTask on a non-exclusive basis for a specific type of lead generation-related product or service (the “Vertical”). Agency shall use the information contained in Leads solely to contact the applicable buyer regarding such buyer’s interest in making a purchase from Agency with respect to the products and services in the Vertical. Agency may not use the Leads or Services for purposes of marketing or offering products and services other than those in the Vertical for which the buyer has specifically inquired about. Agency (i) shall not sell, transfer or otherwise disclose information contained in Leads to any affiliated or unaffiliated third party unless and until Agency obtains the buyer’s authorization to do so in accordance with applicable law; (ii) agrees to use and disclose Lead information only in accordance with applicable law; (iii) will not suggest or encourage buyers to contact CloudTask for the purpose of having the buyer “cancel” their Lead and (iv) will not reveal any of CloudTask’s pricing information to any third party without CloudTask’s prior written consent. For purposes of clarity, all CloudTask pricing information is CloudTask’s Confidential Information.
Distribution of Leads
CloudTask will compare buyer’s sales campaign requirements and certain other relevant information provided by the buyer to Agency’s Evaluation Criteria (as defined below) through the use of CloudTask’s proprietary standardized filter systems. “Evaluation Criteria” means criteria supplied by Agency and used by CloudTask to evaluate them to Lead information submitted by buyers. CloudTask may transmit Leads to Agency if such Leads match Agency’s Evaluation Criteria. The parties acknowledge and agree that: (i) CloudTask is under no obligation to transmit any particular Lead to Agency, even if such Lead matches Agency’s Evaluation Criteria; and (ii) CloudTask may transmit Leads to other participating agencies at any time.
Agency shall provide to CloudTask all links, images, graphics, text and URL’s (collectively the “Content”) necessary for CloudTask to provide the Services. Agency grants CloudTask the right to use, reproduce, publicly display, and distribute the Content for the purpose of providing the Services.
Term of Agreement
The term of this Agreement shall continue until either party terminates the Agreement pursuant to Termination of Agreement Section.
Termination of Agreement
Either party may terminate this Agreement at any time for any reason upon twenty-four (24) hours’ notice to the other party via the Portal. Promptly upon termination, CloudTask shall cease providing the Services and Agency’s account with CloudTask shall be terminated. Upon termination of this Agreement, Lender shall pay to CloudTask any amounts due and payable for Services provided prior to the date of termination. All deposits made to CloudTask will be refunded via the payment method on file within 30 days of termination. All provisions intended to survive the termination of this Agreement shall expressly survive termination and shall continue in force and effect, without limitation.
Agency Representations and Warranties
Agency hereby represents and warrants to CloudTask that: (a) it shall have in effect all licenses and authorizations required by all applicable authorities allowing it to offer the services and products in the geographies in which it is doing business that are the subject of the Lead; (b) it shall comply with all local, state, and federal laws, ordinances, regulations, and orders applicable to its use of the Leads and any calls or other interactions with buyers resulting from the Leads, including without limitation the Telephone Consumer Protection Act and related regulations and authority (the “TCPA”), the CAN-SPAM Act, and/or any other federal and state laws and regulations governing the marketing, promotion, and/or sales of good or services, including without limitation general consumer protection laws and regulations; (c) the Content, trademarks, logos, testimonials and other materials submitted to CloudTask by Agency do not and shall not contain any content, materials or advertising that is inaccurate or that infringes on or violates any intellectual property rights of any third party; (d) the Content and other materials submitted to CloudTask by Agency shall comply with all applicable local, state and federal laws, ordinances, regulations and orders; and (e) it will ensure that its employees, contractors, and agents comply with the foregoing and all terms set forth within this Agreement.
- CLOUDTASK is not an agency and is not engaged in generating leads or related Buyer-based sales services on behalf of Buyers.
- CLOUDTASK does not attempt to fulfill any regulatory obligations, including notices or disclosures, which may be triggered by Agency’s receipt of or response to buyers’ proposal requests or Lead information and CLOUDTASK’s obligations hereunder are limited to providing the CLOUDTASK Services.
- CLOUDTASK does not make any representations or warranties regarding the number or quantity of Leads that will be transmitted to Agency, the identity of buyers whose proposal requests are transmitted to Agency, the validity or accuracy of any proposal request or Lead information or the creditworthiness of buyers.
- CLOUDTASK may not be able to offer Agency’s products and services to residents of every geography.
- CLOUDTASK shall have full discretion with respect to which products and services it will offer to buyers in any particular jurisdiction at any time; and
- Leads do not constitute pre-qualification or a purchase agreement.
- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE CLOUDTASK SITE AND PORTAL IS PROVIDED FOR USE “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, CLOUDTASK DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Agency shall defend, indemnify and hold harmless CLOUDTASK and its subsidiaries, affiliates directors, officers, employees, agents or assigns from and against all, actions, claims, costs, liabilities, judgments, expenses, and damages (including amounts paid in settlement, accounting fees, expert costs and fees and reasonable attorneys’ fees) (collectively, “Losses”) resulting from a third-party claim, suit or investigation to the extent such Losses arise out of or are in connection with: (i) Agency’s breach of this Agreement, including without limitation any terms, covenants, warranties, or representations made within this Agreement; (ii) Agency’s violation of applicable law; (iii) infringement of intellectual property rights, contract rights or tort rights (including the right of publicity or right of privacy) of any third party; (iv) any act or omission of Agency including, without limitation, any acts or omissions relating to consumer privacy, applicable law, appropriate approvals and licenses; or (v) any negligent act or willful misconduct by Agency or Agency’s directors, officers, employees, agents or assigns; and Agency agrees to promptly pay and fully satisfy any and all Losses, incurred or sustained or reasonably likely to be incurred or sustained, by CloudTask as a result of any claims of the types described in this Section 10.
EXCEPT IN THE EVENT OF A BREACH OF CONFIDENTIALITY SECTION OF THIS AGREEMENT, AGENCY’S OBLIGATIONS WITH RESPECT TO BUYER INFORMATION AND INFORMATION SECURITY, OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, IN CONTRACT, TORT, OR OTHERWISE, FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, THE LOSS OF ANTICIPATED PROFITS RESULTING FROM PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL CLOUDTASK’S LIABILITY TO AGENCY EXCEED THE AMOUNT OF THE FEES AGENCY HAS PAID CLOUDTASK IN THE PRIOR ONE (1) YEAR PERIOD UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY AND WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PARTIES AGREE THAT THIS SECTION 11 REPRESENTS A REASONABLE ALLOCATION OF RISK.
Pricing / Terms of Payment / Disconnect Provision.
- Agency agrees to purchase Leads placed in Agency’s Account at the prices set by CloudTask. Notwithstanding the foregoing, prices are subject to change at any time at CloudTask’s sole discretion. CloudTask will notify Agency of any pricing changes prior to the change. Upon such notification, Agency will be bound by any such pricing changes, regardless of Agency’s failure to review the then-current price list or to read or receive any related notification for any reason, subject to Agency’s right to terminate this Agreement in accordance with Termination of Agreement section above.
- CLOUDTASK requires Agency to maintain a minimum balance equal to or greater than the then-current price of a Lead (“Minimum Balance”) on their payment method. If the Minimum Balance is exhausted, CloudTask may (i) continue to perform the Services and deliver Leads to Agency and shall have the right to charge Agency’s card the greater of the requisite Minimum Balance or the amount selected by Agency in the Portal; or (ii) CLOUDTASK may pause Agency’s account. The purchase of a Lead is not refundable except to the extent such Lead is an Unqualified Lead reported to CLOUDTASK during the Dispute Period, as expressly stated within this Agreement. Agency may view in the Portal all Leads delivered to Agency and billed in the previous month, plus any service charges that may be applied.
- Agency agrees to provide CLOUDTASK with current and valid credit card information (type, name, number, expiration date, etc.) and hereby authorizes CLOUDTASK to charge the credit card provided by Lender in the amounts owed or otherwise agreed upon, plus any applicable taxes.
- In the event of a declined charge, CLOUDTASK reserves the right to suspend Lead delivery and notify Agency of declined card. Agency has (3) business days after notification to provide CLOUDTASK with payment sufficient to maintain the Minimum Balance. Failure to return Agency’s account to the Minimum Balance may result in termination of Lender’s account in the Portal.
- All amounts due hereunder shall be paid in U.S. dollars. All amounts invoiced shall be exclusive of taxes, and Agency shall be responsible for all applicable taxes, customs, duties, fees and levies of any nature whatsoever. CLOUDTASK reserves the right to terminate Agency’s Portal access if payments due to CLOUDTASK are not received in accordance with this Agreement.
Production Credits and Advertising
Agency hereby grants to CLOUDTASK the right and license to use Agency’s corporate logo, and any testimonials in any advertising or public relations campaigns related to promotion of the Services. Additionally, it is understood that CLOUDTASK shall have full authority and permission to receive site and screen credits acknowledging its role as the developer of the Internet presence and producer of any associated multimedia.
- Nondisclosure and Non-use. The parties acknowledge that each party (the “Recipient”) will receive in connection with this Agreement confidential information relating to the other party’s (the “Disclosing Party”) business, including but not limited to, information regarding the Disclosing Party’s products, services or offerings; planned marketing or promotion of the Disclosing Party’s products, services or offerings; the Disclosing Party’s business strategies, policies or practices; the Disclosing Party’s inventions, patents and patent applications, discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, “know-how,” trade secrets, any and all customer information, including without limitation, customer lists, customer names, addresses, property descriptions, credit information, and loan offer and approval information, and all other information related to customers, price lists and pricing policies; financial information, including budgets, forecasts, projections, operating results and financial statements; and information received from others that Disclosing Party is obligated to treat as confidential (collectively, “Confidential Information”). All pricing information, including, without limitation, the specific prices Agency pays, is CloudTask Confidential Information. Except as otherwise set forth herein, each party agrees to protect and maintain the secrecy of the Disclosing Party’s Confidential Information by, among other things: (i) treating such information with at least the same standard of care and protection which such party accords its own confidential and proprietary information but in any event with no less than a reasonable degree of care; (ii) using care in the assignment of personnel who receive or have access to such information, and instructing and obtaining the prior written agreement of such personnel to take all reasonable precautions to prevent unauthorized use or disclosure thereof; and (iii) not using, disclosing or exploiting such information except as necessary to perform any services or obligations hereunder or as otherwise pre-authorized by the Disclosing Party in writing.
- Exceptions. Confidential Information does not include any information that the Recipient can demonstrate: (i) was in the public domain at the time it was received; (ii) enters the public domain through no fault of the Recipient; (iii) is independently developed by Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is disclosed as required by law (including disclosures necessary or appropriate in filings with the Securities and Exchange Commission or other governmental body). In addition, Recipient may disclose the Disclosing Party’s Confidential Information to a legal, judicial or governmental entity, or as required by the rules or orders of a court or governmental entity, provided that, before such disclosure, Recipient, if legally permissible, shall give reasonable advance written notice of such so that the Disclosing Party can seek a protective order or the appropriate protection for the Confidential Information and the Recipient uses reasonable efforts to have such information treated as confidential and under seal.
- Destruction of Confidential Information. Upon termination of this Agreement, and on written request of the Disclosing Party, the Recipient will promptly destroy, and provide satisfactory certification of such destruction, all tangible items containing the Disclosing Party’s Confidential Information; provided, however, that the Recipient shall be permitted to maintain a copy as required by Applicable Law, the record keeping requirements of any applicable authority and/or any internal compliance policies. Any Confidential Information retained pursuant to this Section shall remain subject to the confidentiality provisions contained in this Agreement for so long as it is retained by the Recipient.
- Injunctive Relief. Each party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury to the Disclosing Party, the degree of which would be difficult to ascertain. Accordingly, notwithstanding Section 14, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach or alleged breach of this Section, wherever it deems appropriate, as well as the right to pursue any and all other rights and remedies available at law or in equity in the event of such a breach or alleged breach.
Governing Law / Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to principles of conflict of laws. The parties agree that any action, suit, claim or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought by the parties in a Florida state court or a federal court sitting in Miami-Dade County in the State of Florida, which shall be the exclusive venue of any such action, suit, claim or proceeding. Each party waives any objection which such party may now or hereafter have to the laying of venue of any such action, suit, claim or proceeding, and irrevocably consents and submits to the jurisdiction of any such court in Miami-Dade County in the State of Florida (and the appropriate appellate courts) in any such action, suit, claim or proceeding. Nothing contained herein shall be deemed to affect the right of any party to serve process in any manner permitted by law.
- Force Majeure. CloudTask shall not be liable for any nonperformance, delay, error, data loss or other loss caused by an event or conditions that are beyond the reasonable control of CloudTask.
- Non-waiver. Any failure byCloudTask to insist upon or enforce strict performance by Lender of any of the provisions of this Agreement, or to exercise any right or remedy under this Agreement, shall not be construed as a waiver or relinquishment of CloudTask’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same shall be and remain in full force and effect.
- Independent Contractor. CloudTask shall be and act as an independent contractor (and not as the agent or representative of Agency) in the performance of this Agreement. This Agreement shall not be interpreted or construed as (a) creating or evidencing any association, joint venture, partnership or franchise between the parties, (b) imposing any partnership or franchisor obligation or liability on either party, or (c) prohibiting or restricting CloudTask’s performance of any services for any third party.
- Entire Agreement; Conflict. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between CloudTask and Agency with respect to the Services.
- Amendment; Assignment. CloudTask reserves the right, at any time and from time-to-time, to update, amend, revise, supplement and otherwise modify these Standard Terms and to impose new or additional rules, policies, terms or conditions on Agency’s participation in Services at any time without liability. Agency’s continued use of the Services after notice that the Standard Terms have changed shall constitute Agency’s acceptance of such modification or amendment. Notice of any changes to the Standard Terms will be made by posting updated Standard Terms in the Portal, and Lender shall regularly check the Portal for updates to these Standard Terms. Agency shall not assign or transfer any of its rights, obligations or interest in this Agreement without CloudTask’s prior written consent.