GoTo Digital Terms of Service
Last modified: 13 February 2019
Welcome to GoTo Digital! We are excited to have you as a Client.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND GOTO DIGITAL MARKETING LTD. IT GOVERNS YOUR USE OF THE GOTO SOFTWARE, DATA, SERVICES AND WEBSITES. IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THE FOLLOWING TERMS. BY CHOOSING TO REGISTER WITH GOTO, CLICKING “I AGREE” OR SIMILAR INDICATION OF ASSENT DURING THE CREATION OF AN ORDER, OR BY USING GOTO’S SERVICES, YOU ARE AGREEING THAT THESE TERMS WILL GOVERN YOUR RELATIONSHIP WITH GOTO AND APPLY TO YOUR USE OF THE SERVICES. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES.
IT IS AGREED AS FOLLOWS:
In this Agreement, unless the context requires otherwise, the following expressions shall have the following meanings:
Agreement: the agreement between GoTo and Client for the provision of Services subject to the terms and conditions set out herein, along with the Orders executed pursuant to this Agreement;
Client: including the terms “you” or “your”, means the party identified as GoTo’s Client in the Order;
Fees: has the meaning set out in the Order;
GoTo: including the terms “we,” “our” and “us,” means GoTo Digital Marketing Limited, registered in England and Wales under company number 08980112;
Intellectual Property Rights: means any and all trademarks, rights in designs, trade, business or domain names, copyrights, future copyrights, patents, rights in databases (whether registered or not and any applications to register or rights to apply for registration of any of the foregoing) rights in inventions, know-how, trade secrets and other confidential information and all other intellectual property rights of a similar or corresponding nature which may now or in future in any part of the world;
Invalid Lead: means a Lead provided to the Client where the Client is unable to contact such Lead where:
(a) the Lead’s contact number does not exist; or
(b) the Lead’s email address does not exist; or
(c) the Client is provided with a Test Lead;
Leads: the contact details, as requested in the Order, of Potential Customers, as obtained by GoTo solely for the benefit of and provided to the Client;
Test Lead: means a Lead containing the contact details of an employee of either GoTo or the Client;
Licence: has the meaning given in clause 6.1;
Order: means an ordering document setting out the principal commercial terms of the Services to be provided by GoTo to the Client that is signed by Client or submitted to GoTo, whether in writing or by means of an online ordering method, and is accepted by GoTo, which may include, without limitation, an order, statement of work, schedule, attachment, or insertion order, as amended from time to time;
Platform: has the meaning given in clause 6.3;
Potential Customers: third party prospective customers, subscribers to or purchasers of products and/or services provided by the Client;
Price per Lead: means the price per Lead as set out in the Order;
Services: the GoTo software, platforms (such as your online GoTo Dashboard), data, websites and other services provided by GoTo, including the provision of Leads to the Client, on the terms and requirements set out in the Order;
Start Date: the date set out in the Order, being the date from which the Services are provided;
Term: has the meaning given in clause 1.
1. Commencement and Term
1.1. GoTo shall provide the Services to the Client on the terms set out in this Agreement. This Agreement shall be deemed to commence on the Start Date and shall continue (subject to clause 1.2 below) unless and until terminated by either party giving one month’s written notice to the other (the “Term”).
Termination of this Agreement, for any reason, shall not affect any accrued rights of either 1.2. party, nor shall it affect the coming into force or the continuation of any provision that is expressly or by implication intended to come into or continue in force on or after such termination.
2. Provision of Leads
2.1. GoTo shall seek to provide the Client with the agreed number of Leads as set out in the Order (the “Target”). GoTo shall not be obliged to achieve the Target and shall have no liability in the event that it fails to do so.
2.2. In the event that GoTo has not achieved the Target at the end of the Term (provided that the Client has paid for the Services in advance in accordance with clause 3.1 below) GoTo will reimburse the Client an amount equal to the Price per Lead for each Lead that has not been provided to the Client below the Target at the end of the Term.
2.3. GoTo shall provide the Client with the Leads as soon as is reasonably practicable after such Leads are obtained by GoTo. In the event that the Client’s contact details provided to GoTo or online account details are incorrect or cease to be accurate for any reason whatsoever, GoTo shall not be liable for any failure on its part to provide Leads to the Client.
2.4. In the event that the Client is provided with an Invalid Lead, the Client shall notify GoTo in writing (including via e-mail, which will be sufficient notice provided GoTo confirms receipt) within 7 days of receiving the Invalid Lead and such Invalid Lead will not count toward the Target.
2.5. Both parties shall be free to enter into agreements similar to this Agreement with third parties, provided that this Agreement is not materially adversely affected thereby.
3.1. On or before the Start Date, the Client shall pay GoTo the Fees in respect of the Services to be provided as set out in the Order.
3.2. The Fees shall be paid by the Client to GoTo, without deduction or set-off, by way of the payment options provided to Client during the process of creating an Order, which may include credit card, payment service or bank transfer payments. Payments made via bank transfer shall be paid to the following account (unless notified otherwise in writing):
Account: GoTo Digital Marketing Limited
Bank name: Barclays Bank UK PLC
Account number: 13907198
Sort code: 20 94 48
3.3. In the event that the Client fails to make any payment when due under this Agreement, the Client acknowledges that GoTo may cease to provide the Services and that interest may accrue on such unpaid amounts at a rate of 4% per annum until such payment is satisfied in full.
4. Representations, Warranties and Undertakings
4.1. The parties represent and warrant to each other that each has the authority and legal right to enter into this Agreement and will comply with all local, state, federal and international laws, rules, treaties, inter-governmental agreements and governmental orders, regulations and regulatory codes of practice applicable to the conduct of their businesses in relation to the exercise of their rights under and their performance of this Agreement.
4.2. GoTo represents and warrants to the Client that, the personal data of each Potential Customer is collected, used and shared where it has a legitimate interest in carrying out the processing for the purpose of providing the Services or carrying on other business (to the extent that such legitimate interest is not overridden by the Potential Customer’s interests, fundamental rights or freedoms); or, where it has obtained consent from the Potential Customer. Any personal data of a Potential Customer that is shared will be done so pursuant to appropriate technical and organisational security measures to protect it against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or unauthorised access.
4.3. The Client represents and warrants to GoTo that, following the provision of the Leads by GoTo to the Client and, where the Client is processing, using, storing or sharing Leads and any personal data of a Potential Customer contained therein, the Client shall comply with all applicable law and its obligations contained in Schedule 1.
4.4 The Client undertakes to keep confidential any and all information relating to the Potential Customers or otherwise, which is not in the public domain (other than through the default of the Client), and includes:
4.4.1. any information that is, or could reasonably be, identified as being of a confidential or proprietary nature; and
4.4.2. any personal data or sensitive data relating to a Potential Customer which shall, at all times, be handled and processed in accordance with the provisions of Schedule 1.
4.5. GoTo makes no representations or warranties, nor accepts any liability, in respect of the validity of the Leads and makes no efforts to verify the identity of such Leads.
4.6. GoTo shall not be responsible for the accuracy or completeness of any information provided by a Potential Customer and, unless otherwise notified by a Potential Customer, GoTo will treat all information as being accurate and up to date.
4.7. The Client understands and agrees that, save in the event of fraud by GoTo, all Leads received will be considered legitimate and will be charged as such.
4.8. The Client represents and warrants to GoTo that Client shall not use the Platform to, or introduce into the Platform any content, links, scripts or codes that, perform, promote or reference any illegal activity, software piracy and/or activities generally understood as Internet abuse, including the sending of unsolicited bulk messages or the distribution or use of spyware, Malware (as defined below), worms, Trojan horses, time bombs, cancelbots, bots or other code that generate fraudulent or invalid advertising traffic, corrupted files or similar software. “Malware” means software or applications, or websites associated with software or applications, that (i) may be used to disrupt, damage, take control of, misuse, or otherwise use or disable a computer or computer system or operation; (ii) impermissibly views or collects information; or (iii) access computer systems to display or distribute unwanted or illicit advertising, content or software.
5. Termination by Event of Default
5.1. Either party may at any time and without prejudice to any rights or claims it may have against the other party by notice in writing terminate this Agreement with immediate effect if at any time:
5.1.1. the other party shall commit a material breach of any of the terms of this Agreement and (in the case of any breach capable of being remedied) shall have failed to remedy the breach within 14 days after receipt of a request in writing from the non-breaching party to do so (such request to contain a warning of the non-breaching party’s intention to terminate);
5.1.2. the other party shall commit a criminal offence or any act of fraud or dishonesty (whether or not connected with this Agreement); or
5.1.3. the other party becomes insolvent or otherwise unable to pay its debts as they fall due.
6. Intellectual Property
6.1 Regarding Leads, subject to clause 6.2, GoTo grants the Client an exclusive, non-sublicenceable and non-transferable licence to use each Lead for the duration of the Term and for such period of time thereafter where the Client is required by law to retain records of such information relating to the Leads and in accordance with the provisions of Schedule 1 (the “Licence”). For the avoidance of doubt, no other Intellectual Property Rights, save as set out above, are granted to the Client pursuant to these terms and conditions.
6.2. The Licence is conditional upon the Client using the Leads in accordance with its obligations and responsibilities under the EU General Data Protection Regulations 2018 and in accordance with Schedule 1 at all times.
6.3. Regarding Client’s access to GoTo’s online administrative site for account administration and ordering and delivering the Services (“Platform”), this and the following clauses apply: Client may access certain Services through the Platform. For access to the Platform, GoTo will provide Client with one or more logins and passwords for access to Client’s account and corresponding administrative controls (“Client’s Account”) by authorized personnel of Client and/or third parties that Client access the Services on Client’s behalf (“Client’s Representatives”). In order to use the Platform, Client will, and will procure that Client’s Representatives represent, warrant and covenant that they will, provide GoTo with accurate, truthful and complete registration information and agree to the terms of this Agreement for use of the Platform. Upon acceptance of any application made by Client, each of Client’s Representatives will be assigned with a user name and password that will allow access to the Platform, and will become a registered user. Client will ensure that each of Client’s Representatives that is provided registered user access to the Platform keeps its registration information accurate and up-to-date and does not share its password or registered user name with any third party except as otherwise set forth in this Agreement, and Client agrees that any failure by any Client Representative to do so will constitute a breach of this Agreement by Client, which may result in immediate termination of Client’s Account. Client will immediately notify GoTo in writing of any change in authorization, any unauthorized use of any Client’s Account or any other account-related security breach of which it becomes aware. Upon termination of this Agreement for any reason, GoTo will have the right to disable and delete each Client Representative’s access to Client’s Account and the Platform immediately and to delete all Client data thirty (30) days after termination or expiration of this Agreement. Client acknowledges and agrees that GoTo will have no responsibility for Client’s inability to use the Services or access the Platform due to Internet or other network interruption, communications failure, server downtime or other force majeure event.
6.4. GoTo hereby grants to Client, and Client hereby accepts, a non-exclusive, non-transferable (except as expressly provided in this Agreement), limited right for Client to access and use the Platform in accordance with this Agreement solely during the Term and for the sole purpose of using the Services for its internal business purposes. Except as expressly permitted by this Agreement, Client may not, directly or indirectly or by itself or through any other person or entity, use, rent, lease, sell, transfer (by sublicense, assignment, operation of law, change in control or otherwise), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the Platform. Moreover, Client will not (and will ensure that Client’s Representatives do not) reverse engineer, decompile, or otherwise attempt to discover the source code for the Platform or any of the Services. All rights not expressly assigned or licensed in this Agreement are reserved by GoTo in full.
6.5. Except as expressly provided herein, GoTo has and will have the sole and exclusive ownership of all right, title and interest in and to the Platform and all applicable Services and all Intellectual Property Rights in the Platform and applicable Services, any enhancements thereto, any documentation or other materials regarding the use thereof and related thereto, any machine learning and the results and outputs of such machine learning that occur prior to, during, or after Client’s use of the Services, and any GoTo proprietary data provided to Client by GoTo in whatever form or media. Neither this Agreement, nor anything contained herein, will be construed as a sale of the Platform, the Services or any Intellectual Property Right of GoTo, or any proprietary right or title therein or thereto.
7.1. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions.
7.2. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of such rights.
7.3. The terms set out herein constitute the entire agreement between the parties regarding the subject matter hereof and supersedes any prior agreement between the parties relating to such subject matter.
7.4. This Agreement shall be governed by and construed in accordance with the laws of England and Wales, the courts of which shall have exclusive jurisdiction in connection with any disputes arising in connection with its terms and formation (including non-contractual obligations).
7.5. Except as set forth below, the parties may not amend this Agreement or any Order except by a written agreement of the parties that identifies itself as this Agreement or such Orders, as applicable. This Agreement will apply to all Orders submitted in connection with this Agreement, and any preprinted, additional, or supplemental terms in, on or associated with any Client-submitted ordering documents, including purchase or insertion orders, will not apply and will not be binding upon GoTo. GoTo may provide notices to Client, at GoTo’s option, by email to the email address provided by Client to GoTo, by mail to the postal address provided by Client to GoTo, or by posting on the Platform or any GoTo website to which Client has access in connection with this Agreement. It is Client’s responsibility to ensure that the email address and any other contact information it provides to GoTo is updated and correct at all times during the Term. Changes to Client’s contact information should be sent to Client’s designated GoTo service representative. Client and GoTo are independent contractors and nothing in this Agreement will give Client the right, power or authority to create any obligation or responsibility on behalf of GoTo. Except as otherwise set forth in this Agreement, neither Client nor GoTo will have any right, power, or authority to create any obligation or responsibility on behalf of the other and this Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Client may not assign, sublicense, or transfer this Agreement or any right or duty under this Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this clause will be void and of no force or effect. GoTo and its subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time this Agreement, or the rights or obligations hereunder, in whole or in part, to any GoTo affiliate or to any successor in a corporate transaction such as, but not limited to, a merger, purchase of all of GoTo’s assets or securities, or similar change in control transaction. GoTo may modify the terms of this Agreement at any time by posting such modification on the Platform or applicable GoTo website or by notifying Client by email, and such revised terms will supersede and replace all earlier versions. If Client does not agree to any such modification, its sole remedy is to terminate this Agreement upon written notice to GoTo. Client’s and its authorized users’ continued use of the Platform or any portion of the Services will be deemed to be acceptance by Client and its Third Party Users of any such modified version of the terms of this Agreement. As used in this Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity. The section headings and subheadings contained in this Agreement are included for convenience only and will not limit or otherwise affect the interpretation of this Agreement. This Agreement is controlled by the English language and if the terms of this Agreement or any part thereof are translated into any language, for convenience or any other reason, the English language version will control, and the English language interpretation will prevail with respect to any conflicts of interpretation.
Schedule 1 – Sharing Personal Data
1. Definitions and interpretation
1.1 In this Schedule:
means a complaint or request relating to either party’s obligations under Data Protection Laws relevant to this Agreement and/or the processing of any of the Shared Personal Data, including any compensation claim from a Data Subject or any notice, investigation or other action from a Data Protection Supervisory Authority relating to the foregoing (and Complainant means the Data Protection Supervisory Authority, Data Subject or other person initiating or conducting a Complaint);
has the meaning given in applicable Data Protection Laws;
Data Protection Laws
means, as applicable to either party:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) the Directive 2002/58/EC (ePrivacy Directive) and/or the Privacy and Electronic Communications (EC Directive) Regulations 2003;
(e) any laws which implement any such laws; and
(f) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Protection Supervisory Authority
means any regulator, authority or body responsible for administering Data Protection Laws;
has the meaning given in applicable Data Protection Laws from time to time;
Data Subject Request
means a request made by a Data Subject to exercise any right(s) of Data Subjects under Data Protection Laws in relation to any of the Shared Personal Data or concerning the processing of such data;
for the purpose of this Schedule, means GoTo;
means the General Data Protection Regulation, Regulation (EU) 2016/679;
Permitted Lawful Basis
means the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
means processing Personal Data only for the purpose of performing the activities contemplated in this Agreement and in accordance with the instructions of the Disclosing Party;
has the meaning given in applicable Data Protection Laws from time to time;
Personal Data Breach
has the meaning given in the GDPR;
has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing and processes shall be construed accordingly);
for the purpose of this Schedule, means the Client; and
Shared Personal Data
means Personal Data received by the Receiving Party from or on behalf of the Disclosing Party, or otherwise made available by the Disclosing Party for the Permitted Purpose.
1.2. Unless otherwise expressly stated in this Agreement, the Receiving Party’s obligations and the Disclosing Party’s rights and remedies under this Schedule are cumulative with, and additional to, any other provisions of this Agreement.
2. Status of this Schedule and the parties
Each party shall be a Controller of the Shared Personal Data. If the parties share the Shared Personal Data, it shall be shared and managed in accordance with the terms of this Schedule.
3. Compliance with Data Protection Laws
The Receiving Party shall at all times comply with all Data Protection Laws in connection with the exercise and performance of its respective rights and obligations under this Agreement and the processing of the Shared Personal Data.
4. Obligations on the Disclosing Party
The Disclosing Party shall ensure, prior to sharing the Shared Personal Data with the Receiving Party, that all appropriate privacy notices have been made available to each relevant Data Subject, and all consents obtained, as necessary to permit the sharing of the Shared Personal Data with the Receiving Party for the Permitted Purpose on the Permitted Lawful Basis as envisaged under this Agreement in accordance with Data Protection Laws. During the term of this Agreement, the Disclosing Party shall promptly notify the Receiving Party if it becomes aware that any such consent is withdrawn or if a relevant Data Subject has requested that their Shared Personal Data is no longer processed by either party for the relevant processing.
5. Obligations on Receiving Party
5.1. The Receiving Party shall ensure that, at all times:
5.1.1. it shall undertake all processing of the Shared Personal Data only for the Permitted Purpose in accordance with this Agreement and in all respects in accordance with Data Protection Laws;
5.1.2. it shall undertake processing of the Shared Personal Data only to the extent consistent with the Permitted Lawful Basis;
5.1.3. it shall not by any act or omission cause the Disclosing Party (or any other person) to be in breach of any Data Protection Laws; and
5.1.4. it shall promptly (and in any event within 7 Business Days) on request provide the Disclosing Party with: (a) all copies of all notices, records and information necessary to demonstrate its compliance with this Schedule; and (b) all records referred to in paragraph 10.
6. Technical and organisational measures
6.1. The Receiving Party shall at all times:
6.1.1. put in place and maintain appropriate technical and organisational measures so as to ensure the protection of the rights of Data Subjects under Data Protection Laws and as otherwise required to meet the requirements of both parties under all Data Protection Laws; and
6.1.2. implement and maintain appropriate technical and organisational measures to protect the Shared Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
7. Disclosures to third parties
7.1. The Receiving Party shall be liable to the Disclosing Party for all acts and omissions of each of its staff and each of the third parties referred to in paragraph 7.2 (and of all third parties and staff acting directly or indirectly on its or their behalf) as if they were the acts and omissions of the Receiving Party. Each obligation in this Schedule on the Receiving Party to do, or refrain from doing, anything shall include an obligation on the Receiving Party to ensure all such staff and third parties do, or refrain from doing, such thing.
7.2. The Receiving Party shall notify the Disclosing Party prior to engaging or permitting any third party (other than its employees in accordance with this Agreement) to carry out any processing of any Shared Personal Data and the Receiving Party shall ensure at all times:
7.2.1. that all processing by such third parties is conducted in a manner consistent with the Permitted Lawful Basis, the Permitted Purpose, the Receiving Party’s obligations under this Agreement and the restrictions on processing imposed on the Receiving Party under this Agreement; and
7.2.2. without prejudice to the above, that each such third party carrying out any processing of the Shared Personal Data is subject to a binding written agreement regulating its processing of the Shared Personal Data which complies in all respects with the requirements of Data Protection Laws.
8. International transfers
The Receiving Party shall not transfer the Shared Personal Data to any country outside the United Kingdom or to any international organisation (as defined in the GDPR) without the Disclosing Party’s prior written consent.
9. Data Subject Requests, Personal Data Breaches and Complaints
9.1. The Receiving Party shall promptly (and in any event within 24 hours) notify the Disclosing Party if the Receiving Party suspects or becomes aware of any actual or threatened occurrence of any Personal Data Breach in respect of any Shared Personal Data. The Receiving Party shall promptly (and in any event within 24 hours) provide all such assistance and information as the Disclosing Party requires to report any actual or suspected Personal Data Breach to a Data Protection Supervisory Authority and to notify affected Data Subjects under Data Protection Laws.
9.2. The Receiving Party shall promptly (and, in any event, within 2 Business Day of receipt) inform the Disclosing Party if it receives any Complaint or Data Subject Request. When receiving and responding to a Data Subject Request or a Complaint the Receiving Party shall consult in advance with the Disclosing Party and promptly comply with the Disclosing Party’s reasonable instructions (if any).
9.3. Each party shall promptly co-operate with and provide reasonable assistance, information and records to the other to assist each party with their respective compliance with Data Protection Laws and in relation to all Complaints and Data Subject Requests.
The Receiving Party shall maintain complete, accurate and up to date written records of all of its processing of the Shared Personal Data and as necessary to demonstrate its compliance with this Schedule.
11.1. Except as required by applicable law in the United Kingdom the Receiving Party shall:
11.1.1. process each part of the Shared Personal Data for no longer than such processing is necessary for the Permitted Purpose and compliant with this Schedule and all Data Protection Laws; and
11.1.2. immediately, confidentially, irrecoverably and securely destroy or dispose of all Shared Personal Data (and all copies) in its possession or control that can no longer be processed in accordance with paragraph 11.1.1.
12.1. The Receiving Party shall indemnify and keep indemnified the Disclosing Party against:
12.1.1. all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Receiving Party of its obligations under this Schedule; and
12.1.2. all amounts paid or payable by the Disclosing Party to a third party which would not have been paid or payable if the Receiving Party’s breach of this Schedule had not occurred.
Any breach by the Receiving Party of any of its obligations under this Schedule shall be regarded as being material for the purposes of this Agreement.
The provisions of this Schedule shall survive termination or expiry of this Agreement.