Terms of Business
iCumulus and B2B Publisher: “Demand Generation and Lead Management”
Terms of Business – Lead Generation and Lead Management
These Terms of Business (Terms) together with the Publisher 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 Publisher (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 Publisher to deliver this quality service and Publisher, by providing a completed Publisher 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”)
[Company Name, ABN] shall be listed on the form – (“Publisher”)
Key topics covered within this document:
The following words have these meanings in this Agreement:
“Atmosphere LM” means the lead management software platform developed and owned by iCumulus;
“Client” means iCumulus’ Client on whose behalf a lead generation campaign is being conducted;
“DNC Act” means the Do Not Call Register Act 2006 (Cth), as amended from time to time and, where applicable to the Publisher’s [and any Network Publisher’s] location, any equivalent legislation;
“leads” means data or other information provided by the Publisher to iCumulus which identifies persons as potential customers of iCumulus clients;
“lead generation campaigns” means marketing or similar activities undertaken by the Publisher to its membership which produces leads;
“Network Booking” means a media booking which allows the Publisher to act as a network whereby the Publisher outsources the booking to a Network Publisher;
“Network Publisher” means a third party publisher which has entered into a commercial arrangement with the Publisher whereby the Publisher has outsourced the media booking and campaign to the Network Publisher;
“Offline” refers to all means of lead capture which are not conducted online;
“Privacy Act” means the Privacy Act 1998 (Clth), including the Australian Privacy Principles, and any applicable listening and surveillance device legislation, as amended from time to time, and where applicable to the Publisher’s [and any Network Publisher’s] location, equivalent legislation in the United Kingdom, the European Union and New Zealand, including but not limited to the Data Protection Act 1998 (UK), 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 Publisher’s [and any Network Publisher’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).
1.1. The Publisher must:
(c) where the Publisher 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 Publisher agrees to maintain terms and conditions that clearly state the conditions under which the members have joined the database including the type of communications they are likely to receive.
1.4. Should the Publisher engage in any telemarketing activities whereby telemarketing calls are recorded, the Publisher agrees that:
(a) it shall notify individuals, at the beginning of the call, that the call may be recorded and that they may opt out of having the call recorded; and
(b) telemarketing calls will not be recorded where the call recipient has requested no recording occur (except for the recording of the notification and individual’s opt out request at the start of the call).
1.5. The Publisher warrants and undertakes that its collection, handling, use, disclosure and storage of members' personal information (and that of any Network Publisher) complies with the requirements of the Privacy Act and the Australian Privacy Principles and all applicable listening and surveillance device legislation throughout Australia as well as any local privacy and data protection laws (as well as listening and surveillance device law) which are applicable to the Publisher, any Network Publisher and members if located outside Australia.
1.6. The Publisher agrees that commercial electronic messages sent by the Publisher (and any Network Publisher) 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 Publisher (and any Network Publisher) 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 Publisher.
(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).
1.7. The Publisher warrants and undertakes that all commercial electronic messages it (any Network Publisher) will send to members will comply with the requirements of the Spam Act relevant to the location of the Publisher, any Network Publisher and members.
1.8. The Publisher [and any Network Publisher] will comply with the requirements of the DNC Act.
International B2B Campaign Additional Compliance
1.9. Publisher Obligations.
(a) The Publisher (and any Network Publisher):
(i) will provide the services and deliverables described in the attached Form (“Services”).
(ii) shall use commercially reasonable efforts to provide the Client not less than the number of Leads up to any applicable cap set forth in the Form.
(iii) agrees that all Services shall be performed within the mutually agreed time periods specified on the Form.
(b) 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.
(c) 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 Publisher 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.
(d) 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 Publisher shall not to attempt to reverse engineer any Supplied Property or retain, sell, share, or re-use any data records provided by iCumulus. The Publisher shall return all Supplied Property to iCumulus upon request or upon termination of this Agreement.
(e) Publisher Supplied Data Records. The Publisher represents and warrants on its own behalf and on behalf of any Network Publisher that any individual data records that were not supplied by iCumulus and which are used to place calls under this Agreement (“Publisher 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 Publisher Data Records at any time and from time to time and to require the Publisher (and any Network Publisher) to discontinue use of any Publisher Data Records from any particular source at any time. Failure to discontinue use of any Publisher 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.
(f) General Obligations. The Publisher (and any Network Publisher) will perform all Services in a professional and workmanlike manner and in accordance with industry standards. The Publisher may use subcontractors to perform its obligations hereunder; provided, however, that the Publisher 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 Publisher shall produce to iCumulus upon request, all documented evidence that individuals provided consent to be contacted by the [Client/ Publisher] and, in any event, all such records shall be provided to [iCumulus or Client] upon termination of the relationship.
(g) Do Not Call Lists. The Publisher (and any Network Publisher) shall comply with all applicable state, federal, and local laws and regulations in regard to Do Not Call (DNC) lists and procedures.
(h) Recording Calls. The Publisher (and any Network Publisher) 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.
(i) Caller ID Information. The Publisher (and any Network Publisher) shall not use any false or misleading Caller ID information.
(j) Appending Data. The Publisher (and any Network Publisher) 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 Publisher agrees to disclose the lead generation method used for disclosure to Clients upon request by iCumulus or Clients.
2.2 The Publisher agrees to disclose if leads have been captured Offline upon request. The Publisher 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 Publisher agrees to time/date stamp each lead upon collection and this information will be made available with the data supply to iCumulus.
2.4 The Publisher agrees to disclose the options available to iCumulus in relation to data recency if data is NOT captured as live. If collected Offline, the Publisher agrees that the most recent data is to be provided first to iCumulus and then topped up with newest to oldest data.
2.5 The Publisher agrees that any and all leads collected using an incentive (i.e competition to join path) will be disclosed to iCumulus before being delivered to any iCumulus client.
3.1 The Publisher agrees to inform iCumulus of the standard data validation rules the Publisher has in place upon request by iCumulus.
3.2 The Publisher agrees to pass through [to iCumulus]all the fields associated with the Publisher’s validation process.
4.1 Each campaign which iCumulus runs is set up to collect unique records per campaign. Unique records are defined by the individual’s email address, phone number or both. The Publisher acknowledges and agrees that iCumulus will accept [a unique record] on a first come basis only. Each individual email address must have a valid IP address connected to that email address.
5.1. iCumulus agrees to inform the Publisher of any pre-determined quality levels which iCumulus has set with its clients prior to the commencement of campaigns by the Publisher.
5.2. The Publisher acknowledges and agrees that some leads may not reach the pre-determined quality levels iCumulus has set with its clients. In such circumstances, the Publisher acknowledges and agrees that leads which do not meet any pre-determined quality levels will not be accepted by iCumulus and will be returned to the Publisher.
5.3. The Publisher agrees to inform iCumulus of any existing returns policy that is in place.
5.4. The Publisher acknowledges and agrees that iCumulus' default acceptance policy, which is set out below, will apply until [iCumulus is] otherwise informed of the Publisher's existing returns policy:
The Publisher 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 Publisher.
The Publisher 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. In the instance we accept a Network Booking, the Publisher acknowledges and agrees that iCumulus must have the ability to identify each lead source back to the specifics of the Publisher. For identification purposes in the case of networks that are considered “Blind or undisclosed”, the Publisher agrees to provide iCumulus with a list of Publisher ID’s that we can track and recall as required.
8.2. For each campaign, the Publisher agrees to provide iCumulus with a list of Publisher ID’s so we can set up the tracking and reporting accordingly ahead of any start date of campaigns.
8.3. Where the Publisher has outsourced the media booking to a Network Publisher, the Publisher remains responsible for the conduct of the [media booking and campaign] by the Network Publisher in accordance with the terms of this Agreement, despite the outsourcing of the media booking.
8.4. The Publisher will be liable for all acts and omissions of the Network Publisher including any failure to comply with any relevant laws, including but not limited to the Privacy Act, the DNC Act and Spam Act.
The following traffic source categories are not allowed [to be used by the Publisher (and any Network Publisher)] under any circumstances:
The Publisher 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 Publisher.
11.1 The Publisher 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 Publisher 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 Publisher 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 Publisher.
12.2 The Publisher acknowledges and agrees to manage all leads via Atmosphere LM, iCumulus’ lead management platform, unless otherwise first agreed in writing.
Detailed posting instructions and a unique secure login will be provided separately by iCumulus to the Publisher.
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 Publisher 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 Publisher 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 Publisher (whether given by the Publisher on its own behalf or on behalf of a Network Publisher);
(b) any breach of the law by the Publisher or a Network Publisher;
(c) any negligence of the Publisher or a Network Publisher; 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 Publisher (or a Network Publisher) 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