Terms of Business
iCumulus and Publisher: "B2B Demand and Lead Generation and Lead Management"
Terms of Business - B2B Demand and Lead Generation and Lead Management
These Terms of Business (Terms) together with the Partner Booking Form (Form) set out iCumulus' terms for all paid for Lead Generation campaigns booked on behalf of iCumulus clients. The Terms and the terms set out in the Form comprise the agreement between iCumulus and Partner (Agreement).
No modification or variation to the Agreement will be binding on the parties unless first agreed in writing by authorised representatives of the parties.
Our objective is to provide all clients the highest levels of service and to ensure each campaign delivers the highest quality lead whilst remaining compliant to all local, and where appropriate, international laws and legislation that protects consumers from receiving unsolicited communications. This includes but is not limited to laws regulating spam and privacy.
We rely on the Partner to deliver this quality service and the Partner, by providing a completed Partner Booking Form, acknowledges and agrees to the Terms.
The parties to this Agreement are:
iCumulus Pty Ltd (ABN 78 151 741 892) of Level 9, 131 York Street Sydney NSW 2000 ("iCumulus", "We", "Us", "Our(s)")
[Company Name, ABN] ("Partner", "You", "Your(s)")
Key topics covered within this document:
The following words have these meanings in this Agreement:
"Prospects" means persons whose business identities (including, but not limited to, first and last name, job title, employer name, employer size, and/or geographic location) renders them likely to be interested in the products or services of iCumulus clients;
"Lead" means data provided by the Partner to iCumulus containing information on Prospects whose recent engagement with the Partner's campaign indicates that they are potential customers of iCumulus clients; also may be referred as Data Records
"Lead Generation" or "Lead Capture" both refer to the process of Partners generating Leads;
"Campaigns" means marketing programs or similar activities undertaken by the Partner to its membership, subscriber, and/or business databases, which then produces leads as defined in the Form;
"Network Partner" means a third party Partner which has entered into a commercial arrangement with the Partner in which the Partner has outsourced the media booking and/or campaign to the Network Partner;
"Network Booking" means a media booking in which the Partner has outsourced the booking to a Network Partner;
"Lead Verification" means the process of the Partner verifying the veracity and informational integrity of a Lead (including the identity of the Prospect forming part of the Lead), after that Lead has taken place;
"Lead Qualification" means the process of the Partner asking the Prospect (who forms part of the Lead) questions aimed at ascertaining the prospect's (and his or her employer's) professional interest and/or purchasing propensity in the products and services of the iCumulus client;
"Appointment-Setting" means the process of the Partner setting up sales-related appointments for the iCumulus client with the Lead, this appointment taking place in person or via the telephone.
"Atmosphere LM" means the lead management software platform developed and owned by iCumulus;
"Offline" refers to all methods of lead generation which are not conducted online. Examples of offline methods include the telephone and direct mail;
"Privacy Act" means the Privacy Act 1998 (Clth), including the Australian Privacy Principles, as amended from time to time and, where applicable to the Partner's [and any Network Partner's] location, equivalent legislation in the United Kingdom, the European Union and New Zealand, including the Data Protection Act 1998 (UK), the European Union General Data Protection Regulation and the Privacy Act 1993 (NZ) respectively;
"Spam Act" means the Spam Act 2003 (Clth) as amended from time to time and, where applicable to the Partner's [and any Network Partner's] location, equivalent legislation in the United Kingdom and New Zealand, including the Privacy and Electronic Communications (EC Directive) Regulations 2003 (UK) and the Unsolicited Electronic Messages Act 2007 (NZ).
"GDPR" means the General Data Protection Regulation (GDPR) (EU) 2016/679 is a regulation in EU law on data protection and privacy for all individuals within the European Union as amended from time to time and, where applicable to the Partner's [and any Network Partner's] location based in EU and campaigns that require the collection of data on EU residents
All references to the plural include the singular, and vice versa, unless specified otherwise.
1.1. The Partner must:
(a) provide to all members and potential members, at the point of online collection, a notification statement which sets out, at a minimum:
a. the purposes for which the Partner collects personal information
b. details of the types of entities to which the Partner usually discloses personal information
(c) where the Partner is located outside Australia, provide to all members and potential members any additional or alternative privacy statement or other information required by local privacy and data protection laws in that jurisdiction, such as collection statements, privacy policies, cookie policies and consents.
1.3. The Partner agrees to maintain terms and conditions that clearly state the terms and conditions under which the members have joined the online database including the type of communications they are likely to receive.
1.4. The Partner warrants and undertakes that its collection, handling, use, disclosure and storage of members' personal information (and that of any Network Partner) complies with the requirements of the Privacy Act and the Australian Privacy Principles and any local privacy and data protection laws which are applicable to the Partner, any Network Partner and members if located outside Australia.
1.5. The Partner agrees that commercial electronic messages sent by the Partner (and any Network Partner) to its members will comply with the following requirements:
(a) Consent - commercial electronic messages will only be sent with the addressee's consent - either express or inferred consent. A record of consent will be maintained by the Partner (and any Network Partner) which will be sufficient to prove consent, if proof is ever requested by iCumulus, a client or a regulator.
(b) Identify - commercial electronic messages will include clear and accurate information about (i) the person or business that authorised the sending of the commercial electronic message; and (ii) how the recipient can contact the Partner.
(c) Unsubscribe - each commercial electronic message will include a functional unsubscribe facility which will remain active for at least thirty days after the commercial electronic message was sent and unsubscribe requests will be dealt with promptly (within five business days of receipt of the unsubscribe request).
1.6. The Partner warrants and undertakes that all commercial electronic messages it (any Network Partner) will send to members will comply with the requirements of the Spam Act relevant to the location of the Partner, any Network Partner and members.
1.7. The Partner warrants and undertakes that all campaigns it (and any Network Partner) will run to prospects and to members will comply with the requirements of the GDPR relevant to the location of the Partner, any Network Partner and members.
1.8. The Partner [and any Network Partner] will comply with the requirements of the DNC Act.
International B2B Campaign Additional Compliance
1.9. Partner Obligations
The Partner (and any Network Partner):
1.9.1. will provide the services and deliverables described in the booking form (Form).
1.9.2. shall use commercially reasonable efforts to provide the iCumulus not less than the number of Leads up to any applicable cap set forth in the Form.
1.9.3. agrees that all Services shall be performed within the mutually agreed time periods specified on the Form.
1.9.4. iCumulus may add additional requirements to the Form and such requirements shall be supplemental to and not in lieu of the terms of this Agreement. In the event of a conflict between such additional requirements and the terms of this Agreement, the additional requirements provided in the Form shall take precedence unless otherwise agreed in writing.
1.9.5. Start of Campaign; Approved Scripts. [iCumulus / the Client] must approve all scripts for use by call center employees or contract employees (collectively, "Representatives") in connection with the Services provided hereunder ("Approved Scripts"). The Partner shall adhere to Approved Scripts. Approved Scripts may not be materially modified without [iCumulus'/ the Client's] prior written consent. Failure to obtain approval, material modification of Approved Scripts without consent and/or unscripted calls constitutes a material breach and grounds for immediate termination of the Form and/or this Agreement for cause. Leads obtained through other than Approved Scripts are invalid and will not be paid. Approved Scripts may not be used for any purpose other than the Services.
1.9.6. iCumulus Supplied Property and Data Records. iCumulus may provide certain software, products, components, devices, scripts, data records and/or other materials (collectively "Supplied Property") for use solely with regard to this Agreement. Supplied Property and information regarding Supplied Property may not be used for any other purpose than to fulfill this Agreement. The Partner shall not to attempt to reverse engineer any Supplied Property or retain, sell, share, or re-use any data records provided by iCumulus. The Partner shall return all Supplied Property to iCumulus upon request or upon termination of this Agreement.
1.9.7. Partner Supplied Data Records. The Partner represents and warrants on its own behalf and on behalf of any Network Partner that any individual data records that were not supplied by iCumulus and which are used to place calls under this Agreement ("Partner Data Records") were obtained in compliance with all applicable laws. iCumulus shall have the right to audit the source, traffic flow and origin of any Partner Data Records at any time and from time to time and to require the Partner (and any Network Partner) to discontinue use of any Partner Data Records from any particular source at any time. Failure to discontinue use of any Partner Data Records from a particular source immediately upon request is a material breach of this Agreement and iCumulus, in addition to its other rights, will not pay for Leads derived from such source, and may terminate this Agreement immediately for cause.
1.9.8. General Obligations. The Partner (and any Network Partner) will perform all Services in a professional and workmanlike manner and in accordance with industry standards. The Partner may use subcontractors to perform its obligations hereunder; provided, however, that the Partner shall (a) ensure that all such subcontractors comply with the terms of this Agreement (including without limitation compliance with all applicable laws, statutes or other governmental regulations); and (b) be fully responsible for such subcontractors' performance hereunder. The Partner shall produce to iCumulus upon request, all documented evidence that individuals provided consent to be contacted by the Partner and, in any event, all such records shall be provided to [iCumulus or Client]upon termination of the relationship.
1.9.9. Do Not Call Lists. The Partner (and any Network Partner) shall comply with all applicable state, federal, and local laws and regulations in regard to Do Not Call (DNC) lists and procedures.
1.9.10. Recording Calls. The Partner (and any Network Partner) shall provide notification to the individual, at the beginning of the call, that the call is being recorded. Such notification must be included in the recording.
1.9.11. Caller ID Information. The Partner (and any Network Partner) shall not use any false or misleading Caller ID information.
1.9.12. Appending Data. The Partner (and any Network Partner) shall not append, supplement or correct any phone number or email address submitted by [an individual?], nor allow any third party to do the same, except as authorised by iCumulus.
2.1 The Partner agrees to disclose the lead generation method in its entirety used for disclosure to clients upon request by iCumulus or clients.
2.2 The Partner agrees to disclose if leads have been captured Offline, upon request by iCumulus. The Partner agrees and acknowledges that leads which have been captured Offline will effect data recency (ie the age of the member record from collection).
2.3 The Partner agrees to time & date stamp each lead upon collection and this information will be made available with the data supply to iCumulus specific to the campaign.
2.4 Partner agrees to conduct telephone-based lead verification of each lead that was generated via online marketing methods
2.5 The Partner agrees to record each telephone conversation it engages in with Prospects during campaigns, whether this conversation is for lead verification, lead qualification, or appointment-setting purposes. Furthermore, Partner agrees:
2.5.1 To inform the Prospect of the recording of the conversation, in a manner that complies with the the Spam Act and any relevant legislation relating to telephone-based sales and marketing; and
2.5.2 Maintain each voice recording in a manner that complies with the Privacy Act and GDPR, for a period of up to three (3) months; and
2.5.3 Provide any (or all) of these voice recordings to iCumulus as a digital file, within one (1) working day following request by iCumulus.
2.6 The Partner agrees to disclose the options available to iCumulus in relation to data recency if data is NOT captured as live. If collected Offline, the Partner agrees that the most recent data is to be provided first to iCumulus and then topped up with newest to oldest data.
2.7 The Partner agrees that any and all leads collected using an incentive outside of the campaign content (e.g. rewarding Prospects to respond) will be disclosed to iCumulus before being delivered to any iCumulus client.
3.1 The Partner agrees to inform iCumulus of the standard data validation rules the Partner has in place upon request by iCumulus.
3.2 The Partner agrees to pass through to iCumulus all the fields associated with the Partner's validation process against each lead collected
4.1 Each campaign which iCumulus runs is set up to collect unique records per campaign. Unique records are defined by the consumer's email address, phone number or both. The Partner acknowledges and agrees that iCumulus will accept a unique record on a first come basis only.
4.2 The Partner agrees that in respect of Partner leads to be provided to iCumulus:
4.2.1 Each phone number will be:
18.104.22.168 Unique with a valid number, belonging to the Prospect and/or organisation forming part of the Lead;
22.214.171.124 A landline number or mobile phone number; and
126.96.36.199 Not a customer service line, telephone hotline, or toll free line.
4.2.2 Each email address will be:
188.8.131.52 Unique with a valid IP address connected to that email address;
184.108.40.206 A professional email address that belongs to the Prospect and organisation forming part of the Lead.and
220.127.116.11 Not a personal email address.
5.1 iCumulus agrees to inform the Partner of any predetermined quality levels which iCumulus has set with its clients prior to the commencement of campaigns by the Partner.
5.2 The Partner acknowledges and agrees that some leads may not reach the predetermined quality levels iCumulus has set with its clients. In such circumstances, the Partner acknowledges and agrees that leads which do not meet any predetermined quality levels will not be accepted by iCumulus and will be returned to the Partner.
5.3 The Partner agrees to inform iCumulus of any existing returns policy that is in place.
5.4 The Partner acknowledges and agrees that iCumulus' default acceptance policy, which is set out below, will apply until otherwise informed of the Partner's existing returns policy:
6.1 The Partner acknowledges and agrees that the availability of categories or sub-categories for exclusivity may be requested by iCumulus prior to the delivery of leads to iCumulus and that, where agreed prior, exclusive clients are to be treated on a first right of refusal basis for all lead-based activity offer by the Partner.
7.1 The Partner must be able to identify to iCumulus the source of entry (IP address, date/time stamp and URL) for each lead captured. This information must included in the lead data supplied to iCumulus.
8.1 Partner must inform iCumulus of its intention to utilise Network Partners before a campaign is due to commence
8.2 In the instance we accept a Network Booking, the Partner acknowledges and agrees that iCumulus must have the ability to identify each lead source back to the specifics of the Partner. For identification purposes in the case of networks that are considered "Blind or undisclosed", the Partner agrees to provide iCumulus with a list of Partner ID's that we can track and recall as required.
8.3 For each campaign, the Partner agrees to provide iCumulus with a list of Partner ID's so we can set up the tracking and reporting accordingly ahead of any start date of campaigns.
8.4 Where the Partner has outsourced the media booking to a Network Partner, the Partner remains responsible for the conduct of the campaign by the Network Partner in accordance with the terms of this Agreement, despite outsourcing the media booking.
8.5 The Partner will be liable for all acts and omissions of the Network Partner including any failure to comply with any relevant laws, including but not limited to the GDPR, Privacy Act and Spam Act.
9.1 The following traffic source categories are not permitted to be used by the Partner (and any Network Partner) under any circumstances (Prohibited Sources):
10.1 The Partner agrees to notify iCumulus of any detected use of a Prohibited Source as indicated in clause 9 within 1 business day of detection by the Partner.
11.1 The Partner agrees that pricing will be determined per field of data captured. The higher the quality of the data, the higher the price per field.
11.2 The Partner must provide iCumulus with its latest full rate card for leads per contact field for agreement by iCumulus before any lead generation campaign commences.
12.1 The Partner agrees to use Atmosphere LM unless requested by iCumulus to upload data via FTP in a format which will be specified by iCumulus and confirmed in writing to the Partner.
12.2 The Partner acknowledges and agrees to manage all leads via Atmosphere LM, iCumulus' lead management platform, unless otherwise first agreed in writing.
12.3 Reporting from ALM will be the only source for invoicing purposes
13.1 Detailed posting instructions and a unique secure login will be provided separately by iCumulus to the Partner from ALM.
14.1 "Confidential Information" means all data and other information of whatever nature that the parties provide to each other under the terms of this Agreement but excludes information known to either party prior to the date it was provided by the disclosing party and information which was bona fide obtained from a third party who lawfully possessed the Confidential Information.
14.2 iCumulus and the Partner agree to:
(a) keep confidential any Confidential Information which has been or which may be disclosed to them or which they may obtain or acquire during the Term;
(b) not copy any Confidential Information without the prior written consent of the other;
(c) not use the Confidential Information for any purpose other than for fulfilling their obligations under this Agreement; and
(d) not disclose the Confidential Information to any third party without the prior written consent of the other, except that disclosure may be made to such of its employees on a need-to-know basis on the condition that all necessary steps are taken to ensure that those employees to whom the Confidential Information is disclosed, observe the requirements of this clause.
15.1 The Partner agrees to indemnify iCumulus for any loss, damage, costs (including legal costs) and other expenses suffered by iCumulus arising from or in connection with:
(a) any breach of this Agreement, including (but not limited to) any breach of warranty by the Partner (whether given by the Partner on its own behalf or on behalf of a Network Partner);
(b) any breach of the law by the Partner or a Network Partner;
(c) any negligence of the Partner or a Network Partner; and
(d) any payment made to any client of iCumulus or any third party as a result of any claim by or judgment or settlement in favour of that client or third party because of or in connection with any default or defect in the services supplied by the Partner (or a Network Partner) to iCumulus under this Agreement.
15.2 The indemnity in clause 15.1 will continue to apply notwithstanding the termination or expiry of this Agreement.
16.1 If any part of this Agreement is found to be invalid or unenforceable by any Court or other competent body, such invalidity or unenforceability shall not affect the other provisions of this Agreement and such other provisions shall remain in full force and effect.
17.1 "Force Majeure" means any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, failure of payment systems, or any event beyond the reasonable control of the party claiming to be excused from performance of its obligations.
17.2 Neither party will be liable for any delay or failure in the performance of any of its obligations under this Agreement if such delay or failure is due to an event of Force Majeure.
18.1 If a dispute arises from this Agreement, a party to this Agreement must not commence court or arbitration proceedings relating to the dispute unless that party has participated in mediation in accordance with this clause. This clause does not apply to an application for urgent interlocutory relief.
18.2 A party to this Agreement claiming that a dispute has arisen from the Agreement (the Dispute) must give a written notice specifying the nature of the Dispute (the Notice) to the other party.
18.3 Any mediation shall be held in Sydney before one mediator mutually agreeable to the parties in accordance with the Mediation Rules of The Law Society of New South Wales. If the parties are unable to appoint a mediator within seven (7) days of one party giving Notice, the parties agree that the President of The Law Society of New South Wales will appoint the mediator.
18.4 If the matter has not been settled by mediation within thirty (30) days of the date of the appointment of the mediator, the matter shall be referred to arbitration before a single arbitrator pursuant to the ACDC Guidelines for Commercial Mediation. Such arbitration shall take place in Sydney, Australia.
19.1 This Agreement is governed by the laws of New South Wales. The courts of New South Wales have non-exclusive jurisdiction over any claim or matter which might arise out of or in connection with this Agreement.
20.1 This Agreement may be executed in counterparts. All executed counterparts together constitute one document. A party may execute this Agreement by duly executing a counterpart and forwarding a copy of the signed counterpart to the other party.
Executed as an agreement
Signature of Witness
Name of Witness