TERMS AND CONDITIONS
These Terms and Conditions (this “Agreement”) are entered into
among Lead Depot, The Lead Depot Inc, a California corporation (“Company”), and
all visitors to and users of (“you” or “your”) LeadDepot.com, any of its
subpages, and all related applications, platforms, portals, consoles or
interfaces (collectively, the “Website”). This Agreement governs your use of
the Website and any subsequent purchase or use of the services or products that
Company offers (including, without limitation, Leads, Qualified Appointments,
and any others). By visiting LeadDepot.com, creating a login account through
LeadDepot.com, accepting a Qualified Appointment, or using other resources
provided or made available by the Company to obtain or contact Leads or
Qualified Appointments, you hereby accept and consent to all the terms and
conditions set forth herein as well as any and all additional terms and
conditions provided on the Website. Even if
you do not create an account and/or do not purchase Leads or Qualified Appointments, and only
visit the Website, you are still bound by this Agreement. Certain capitalized terms used herein may be defined either when
they are first used or in a separate section of this Agreement.
I.
OUTLINE OF SERVICES; RESPONSIBILITIES
OF PARTIES.
A.
Customer Responsibilities. By accessing a
Lead or a Qualified Appointment’s contact information (whether
through the Website, email, phone, or otherwise), Customer agrees to all of the
following:
1.
Payment of Fees. Customer shall pay
Company the Fees due hereunder.
2.
Notify Company of Sale. Customer shall promptly notify Company in writing of any and all
Leads or Qualified Appointments that Company converted into a sale so that
Company can charge Customer the appropriate Conversion Fee due hereunder.
3.
Automatic Payment of
Conversion Fee for Failing to Notify Company of a Sale. Customer consents and agrees to Company automatically charging
Customer’s credit card for the Conversion Fee amount if Customer fails to
notify Company whether Customer converted a Lead or Qualified Appointment to a
sale. Company shall have the right to impose this automatic charge on
Customer’s credit card 24 hours after Company provides Customer with a time and
date for an appointment with a Consumer.
4.
Automatic Payment of Conversion
Fee and Administrative Expenses for Misreporting of a Sale. If Company discovers that Customer converted a Lead or Qualified
Appointment to a sale, but Customer notified Company that the Lead or Qualified
Appointment was not converted to a sale (whether intentional or not), then
Company shall automatically charge Customer the Conversion Fee, plus an
additional $250.00 fee as liquidated damages to compensate Company for the
administrative expenses Company will incur to investigate and rectify such
misreporting. The $250.00 liquidated damages amount is to offset the Company’s
costs to ensure that all Customers subject to this Agreement are accurately
complying with their responsibilities to notify Company of Leads and Qualified
Appointments that are converted to sales. Customer acknowledges and agrees that
quantifying the amount of damages Company would incur as a result of Customer’s
misreporting to Company that it did not convert a Lead or Qualified Appointment
into a sale would be difficult and expensive and that the foregoing measure of
liquidated damages represents a reasonable estimation of Company’s damages.
5.
No Sharing or Resale of Leads
or Qualified Appointments; Automatic Payment of Administrative Expenses for
Improper Sharing or Resale of Leads and Qualified Appointments. Customer acknowledges and agrees that any Leads and Qualified
Appointments acquired under this Agreement shall not be resold, re-marketed or
otherwise provided by Customer to any third parties. Any such resale or
impermissible transfer of a Lead or a Qualified Appointment or the data
contained therein, as well as any such direct or indirect transfer, export,
display, forward, share, or use of a Lead or Qualified Appointment or the data
contained therein shall constitute a misappropriation of Company’s property,
which necessarily inflicts grave harm on Company’s business, and Customer
expressly agrees that Company may automatically charge Customer’s credit card
$500.00, per separate occurrence, as liquidated damages and not as a penalty,
in addition to any other remedies available at law or in equity. Customer
acknowledges and agrees that quantifying the amount of damages Company would
incur as a result of misappropriation of a Lead or Qualified Appointment,
and/or the data contained therein would be difficult and expensive and that the
foregoing measure of liquidated damages represents a reasonable estimation of
Company’s damages, as Company is contractually restricted from such resales
with its affiliates and/or partners.
6.
Legal Compliance. Customer shall comply with all federal, state, local and
industry laws, rules, regulations, and requirements applicable to Customer’s
business and industry, and performance of this Agreement, including, without
limitation, all laws regarding the offer and sale of products and services.
Further, Customer shall be duly licensed, permitted, bonded, insured (with
coverages and limits customary for Customer’s industry), authorized and
certified (as applicable) by all applicable government or regulatory authorities,
at all necessary times, to offer, perform, and/or sell services and products to
Leads and Qualified Appointments. Company shall not be liable or responsible
for any actions or inactions of Customer.
7.
Protect Account
Information. Company is not responsible for any lack of
care by Customer to secure its own data (for example, sharing of Customer’s
username, password, or other account information used in connection with the
Website, not logging out of Customer’s account for the Website, etc.), secure
Consumer Information provide to or obtained by Customer, or for any breach of
security on or through the Website. For the avoidance of doubt, Customer is
responsible for any access to or use of Customer’s account and any Consumer
Information by Customer or any person or entity using Customer’s username,
password or other account information provided by Company to Customer, whether
or not such access or use has been authorized by or on behalf of Customer, and
whether or not such person or entity is an employee, agent, or representative
of Customer. Customer shall maintain appropriate physical, technical and organizational
measures to protect all Lead, Qualified Appointment, and Consumer Information
provided hereunder against unauthorized access, use or disclosure. Customer
shall: (i) notify Company promptly, in writing, and no later than twenty-four
(24) hours following the occurrence of any apparent breach of security, such as
loss, theft or unauthorized disclosure or use of Customer’s user name,
password, other account information or any Lead, Qualified Appointment, or
Consumer Information transmitted to Customer hereunder; and (ii) provide all
necessary and reasonable cooperation to Company to comply with any laws
applicable to such security breach, including, without limitation, (a) the
notification of all Leads, Qualified Appointments, or Consumers who may have a
right to be informed of such breach and (b) the investigation and prosecution
of such breach.
8.
Refrain from Unlawful
and Prohibited Uses. Customer is granted a
non-exclusive, non-transferable, non-sublicensable, limited, and revocable
license to access and use the Website, the Leads, and the Qualified
Appointments in strict accordance with this Agreement. Customer represents and
warrants, as a condition precedent, that Customer will not use the Website for
any unlawful or prohibited purpose, whether by law or in accordance with this
Agreement. Customer shall not obtain, directly or indirectly, any information
that is not made readily available or provided through the Website. Under no
circumstances shall Customer attempt to resell any of Company’s content
(including, without limitation, Leads or Qualified Appointments). Customer
shall not modify, publish, reverse engineer, transmit, create derivative works,
or exploit any of Company’s Website or content, in whole or in part. Customer
agrees that it shall only use Company’s Website and content for personal use in
attempting to contact Leads or Qualified Appointments for purposes of selling
them on Customer’s services.
9.
Intellectual Property. You shall not make use of Company’s intellectual property. All
content included on Website, including, but not limited to, text, graphics,
logos, images, and software is Company’s intellectual property or Company’s
suppliers, and such intellectual property is protected by copyright, trademark,
patent and other laws and regulations that protect proprietary rights. You
shall abide by all copyright, trademark, patent and other proprietary notices
contained in such content and not alter them in any way. Your use of the
Website does not entitle you to any ownership, license to, proprietary or other
property rights in or to the Website or any of Company’s intellectual property,
nor does it grant you any express or implied license to use Company’s
intellectual property except as expressly provided for in this Agreement.
10.
United States Users. You shall only make use of Website, Leads, and Qualified
Appointments if you can do so in compliance with all United States laws and
regulations. If you access the Website from any location outside the United
States, you shall be solely responsible for compliance with all relevant
international laws and regulations, as well as the laws and regulations of the
United States (including federal, state and local laws and regulations in the
United States).
B.
Company Responsibilities.
1.
Company Responsibilities for Leads. If
Customer has subscribed for Leads, then Company shall provide Customer with at
least one (1) Lead per calendar month on a nonexclusive basis, subject to all
limitations and restrictions of this Agreement, in exchange for the Monthly Fee
that shall be charged automatically to Customer’s credit card on file. However,
Company’s guarantee of providing Customer with at least one Lead per month does
not apply to Customer’s first month of membership if that month is prorated.
For the avoidance of doubt, Company shall provide Customer with a Lead that has
indicated interest in the services that Customer provides, however, Customer
assumes the responsibility to close the sale with the Lead. If Company is
unable to supply Customer with a Lead in any given calendar month, Company
shall credit Customer’s Monthly Fee to the following month. However, if
Customer already provided to Company the required thirty (30) day advance
written notice of cancellation such that Customer’s subscription is already
scheduled to be cancelled prior to the subsequent month, then Company will
refund the Monthly Fee. In no case will Customer receive a refund of the
Monthly Fee for a month for which Company already supplied Customer with a Lead
during such month, nor will Customer receive a refund for a prorated Monthly
Fee (i.e., only applies to first billing month when it is less than $29.00).
Company reserves the right to contact Leads provided to Customer for the
purpose of determining whether or not a Lead was converted to a sale by any and
all Customers that have access to Leads, and to ask Lead about Lead’s
satisfaction of Customer’s services or products. Company shall also provide an
estimated cost for the services that the Lead has requested, which shall be
computed through an artificial intelligence software (“Estimated Cost”). The
Estimated Cost shall be used to calculate the Conversion Fee, as set forth in
more detail below.
2.
Company Responsibilities for Qualified
Appointments. If Customer agrees to accept or purchase a Qualified
Appointment, then Company shall provide Customer with the Customer name, project
type, location, day, and time for the Qualified Appointment. In exchange,
Customer shall pay the Conversion Fee to Company. Company reserves the right to contact Leads
provided to Customer for the purpose of determining whether or not a Lead was
converted to a sale by any and all Customers that have access to Leads, and to
ask Lead about Lead’s satisfaction of Customer’s services or products. Company
shall also provide the Estimated Cost for the services that the Qualified
Appointment has requested. The Estimated Cost shall be used to calculate the
Conversion Fee, as set forth in more detail below.
II.
FEES AND PAYMENT TERMS
A.
Fees. Customer shall pay Company the
following fees (the “Fees”) in exchange for the services that Company provides
hereunder:
1.
Fees for Leads. The following Fees shall apply only to Leads:
(a)
Monthly Fee. A fixed price of $29.00 per
month (the “Monthly Fee”), which Monthly Fee shall continue to be paid and
charged to Customer’s credit card indefinitely unless Customer provides Company
with 30 days’ advance written notice of its desire to cancel membership.
Customer’s first Monthly Fee shall be pro-rated based on the number of days
elapsed in the calendar month on the day that Company first subscribes, (e.g.,
if Company first subscribes on the 15th day of a month with 30 days,
then Company’s prorated charge will be 50% of the Monthly Fee for such calendar
month). The monthly billing cycle date thereafter will be billed on the 10th day
of each calendar month until Company’s membership has been cancelled pursuant
to the 30-day advance written notice requirement set forth herein; and
(b)
Conversion Fee. The lesser of the
following amounts (the “Conversion Fee”): (i) ten (10) percent of the Estimated
Cost or (ii) ten (10) percent of the actual cost of the services performed for
the Lead. If Customer charges the Lead less than the Estimated Cost, Customer
may furnish Company with clear and verifiable documentation evincing the
discrepancy and Company will reduce the amount charged to Customer to reflect
ten (10) percent of the actual amount charged to the Lead. For avoidance of
doubt, if the Estimated Cost ends up being less than the actual amount Customer
charges the Lead, Customer shall be fully entitled to the extra amount charged
(i.e., the Conversion Fee will never be greater than ten (10) percent than the
Estimated Cost). Notwithstanding the foregoing, the minimum amount
of the Conversion Fee shall be $50.00.
2.
Fees for Qualified Appointments. The following Fees shall apply only to Qualified Appointments:
(a)
Conversion Fee. The only Fees for a
Qualified Appointment shall be the Conversion Fee (i.e., there is no Monthly
Fee for Qualified Appointments). For avoidance of doubt, this means that in
exchange for receiving a Qualified Appointment, Customer shall pay to Company the
lesser of the following amounts: (i) ten (10) percent of the Estimated Cost or
(ii) ten (10) percent of the actual cost of the services performed for the Qualified
Appointment. If Customer charges the Qualified Appointment less than the
Estimated Cost, Customer may furnish Company with clear and verifiable
documentation evincing the discrepancy and Company will reduce the amount
charged to Customer to reflect ten (10) percent of the actual amount charged to
the Qualified Appointment. For avoidance of doubt, if the Estimated Cost ends
up being less than the actual amount Customer charges the Qualified Appointment,
Customer shall be fully entitled to the extra amount charged (i.e., the
Conversion Fee will never be greater than ten (10) percent than the Estimated
Cost). Notwithstanding the foregoing, the minimum amount of the
Conversion Fee shall be $50.00.
B.
Reporting. Customer shall promptly report
in writing to Company the status of all Leads and Qualified Appointments and whether
or not a Lead or Qualified Appointment is converted to a sale. For the
avoidance of doubt, whenever Customer is supplied with a Lead or Qualified
Appointment’s information or matched with a Lead or Qualified Appointment, it
is the Customer’s responsibility to inform Company as to whether the Lead or
Qualified Appointment was converted to a sale or not. If Customer fails to
report the status to Company within twenty-four (24) hours from the time and date
of the appointment that Company scheduled for Customer and a Lead, Qualified
Appointment, or Consumer, then Customer shall be automatically charged the
Conversion Fee.
C.
Refunds. Regardless of whether a Lead or Qualified Appointment was converted to a sale or not, Company shall have full and
absolute discretion in determining whether or not to process a refund whenever
a Customer is charged for failing to timely report a Lead or a Qualified
Appointment’s status in accordance with this Agreement.
III.
RECORDS; CONSENT TO CHARGES; ADDITIONAL REQUIREMENTS
A.
Recordkeeping Obligation and Right to Audit.
Customer shall maintain throughout the term of this Agreement, and until the
conclusion of any applicable statute of limitations, under applicable local,
state, and federal law, true and correct records of all information pertinent
to Customer’s use of Leads or Qualified Appointments, including, but not
limited to all communications between Customer and Leads or Qualified
Appointments, as well as all records of payments made by Leads or Qualified
Appointments to Customer. Customer shall promptly deliver any and all records
required under this Agreement to Company upon Company’s request. If any records
related to Customer’s use of Leads or Qualified Appointments are requested by a
third party, including, without limitation, a government entity or regulatory
authority, Customer shall, upon not less than five (5) days’ written notice,
provide Company, the third party, the government entity and/or the regulatory
authority a true and correct copy of such records. Such prior written notice to
Company shall identify the third party, government entity or regulatory
authority to which such records must be delivered and the information that must
be reported. Company or its agent shall be entitled to audit, at its expense,
during regular business hours and upon not less than five (5) days’ written
notice, records of all information pertinent to Customer’s use of the Leads or
Qualified Appointments for the purpose of verifying Customer’s compliance with
the data use, transfer and payment terms of this Agreement, including, without
limitation, any/all local, state and federal email and/or telemarketing laws,
rules and regulations, and for verifying accuracy of payments. Any such audit
shall not be made more than twice per annum during the term of this Agreement,
unless reasonably required and/or a prior audit has disclosed an improper use,
transfer, or payment. If, based on any such audit, Company determines that
Company was underpaid by an amount equal to or greater than the lesser of
$5,000 or five percent (5%) for the period under audit, or that there has been
an improper use or transfer of Lead or Qualified Appointment data as
contemplated herein, then the reasonable out-of-pocket costs incurred by
Company in connection with the review (including reasonable accountants’ and
attorneys’ fees) shall be reimbursed by Customer within five (5) days after
demand therefor. Company may, once per annum and upon not less than twenty (20)
days’ written notice, audit Customer’s policies, procedures, and internal
controls to verify Customer’s compliance with this Agreement and all applicable
local, state and federal laws, rules, regulations and requirements. This audit
may be performed by a request for materials.
B.
Assignment. Customer may not assign, transfer, or delegate any of its
rights, responsibilities, duties or obligations under this Agreement without
the prior written consent of Company. Any attempts to do so shall be null and
void. Subject to the foregoing limitation, this Agreement, together with any
agreements referenced and incorporated herein, shall inure to the benefit of
and be binding upon Customer, their successors, administrators, heirs, and
permitted assigns.
C.
Pre-Authorization to
Charge Customer’s Credit Card. Customer hereby
authorizes Company to charge Customer’s credit card on file in accordance with
this Agreement. Customer understands and agrees that Company will not obtain
separate additional authorization from Customer for each recurring Fee charged
to Customer’s credit card. By creating a login account through Website,
Customer understands and agrees to pay, and specifically authorizes Company to
charge Customer’s credit card for Fees and other amounts due pursuant to this
Agreement. Customer further agrees that in the event Customer’s credit card
becomes invalid, Customer will provide a new valid credit card upon Company’s
request to be charged for the payment of any outstanding balances owed.
D.
Qualifications. You must be at
least eighteen (18) years old to use the Website. You represent that you are of
legal age to form a binding contract.
E.
Contact. By providing your Personally Identifiable Information (as
defined below) to Company, you are consenting to be contacted by Company or its
affiliates by telephone, text message, email, text, mail or other methods of
electronic communication based on the information you provided to Company
(which contact may involve the use of an automatic telephone dialing system to
dial or store your phone number), even if you have opted into the National Do
Not Call List administered by the Federal Trade Commission or any state
equivalent Do Not Call List. You may have the opportunity to give Company
contact information of other individuals that you would like to receive
notifications relating to the Website use. Such additional individuals may be
required to assent to the terms this Agreement. If you no longer want to
receive communications from the Company or an affiliate, you must notify the
Company in writing. As used herein, “Personally
Identifiable Information” includes, but is not limited to, your name,
address, phone number, fax number, email address and credit card information.
Notwithstanding the above, Personally Identifiable Information does not include
information that is collected anonymously (i.e., without identification of the
individual user) or demographic or use information not connected to an
identified individual.
F.
Future
Performance; No Business Opportunity. Company makes no representation that
the Leads, the Qualified Appointments, the Website, or this Agreement
guarantees any future success, profits, performance or any other result for you
or your future business efforts (if any). Each Customer has made its own
independent business evaluation regarding whether to purchase Leads or
Qualified Appointments from Company. Nothing in this Agreement, and no course
of dealing between any Customer and Company, shall be construed to create or
imply in any manner a business opportunity relationship between the parties.
IV.
COMPANY’S RETAINED RIGHTS
By visiting the
Website, you consent to all of Company’s retained rights provided under this
section.
A.
Changes to Terms. Company reserves the
right, in its sole discretion, to change or modify the terms of this Agreement at
any time (including, without limitation, as it pertains to the Fees, Monthly
Fee, Conversion Fee, liquidated damages amounts, or other amounts due from
Customer to Company; the manner in which Company provides Customer access to
Website, Leads, and/or Qualified Appointments; or other terms). The most
current version of this Agreement will supersede all prior versions. The most
current version of this Agreement shall be determined by the version of the
Agreement made available at https://leaddepot.com/terms-and-conditions/
or another subpage accessible via LeadDepot.com. You acknowledge and agree that
it is your responsibility to review and stay up to date on the most current
version of the Agreement. If you do not agree to this Agreement or any
subsequently updated version of this Agreement, then you must immediately
discontinue using the Website, accepting Leads or Qualified Appointments from
Company, and contacting and/or performing work for Leads or Qualified
Appointments. Otherwise, you will be deemed to have assented to this Agreement
and any subsequent updates to this Agreement.
B.
Right to Restrict or
Terminate Access. Company reserves the right to terminate your
access to the Website, Leads, Qualified Appointments, and any other related service, or portion thereof, at any time,
and without notice, in Company’s sole discretion, so long as it does not
violate any local, state, or federal laws.
C.
Right to Share
Customer’s Use of Website and Services. Company’s
responsibilities and obligations under this Agreement are subject to existing
laws and regulations, and nothing herein shall preclude Company of the right to
comply with any legal, governmental, or court requests relating to your use of
the Website or information gathered by Website or Company with respect to such
use.
V.
DISCLAIMERS AND LIMITATION OF LIABILITY
A.
DISCLAIMER OF LIABILITY AND WARRANTIES.
1.
COMPANY AND/OR ITS SUPPLIERS MAKE NO
REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY,
TIMELINESS, SUITABILITY, AND/OR ACCURACY OF THE WEBSITE, INFORMATION, SOFTWARE,
PRODUCTS, SERVICES, GRAPHICS, LEAD OR QUALIFIED APPOINTMENT CONTACT
INFORMATION, OR LEAD OR QUALIFIED APPOINTMENT INFORMATION FOR ANY PURPOSE.
2.
TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ALL THE LEADS, QUALIFIED APPOINTMENTS, CONTACT INFORMATION, MATERIALS,
AND OTHER DATA PROVIDED AND/OR USED ON OR THROUGH THE WEBSITE ARE PROVIDED “AS
IS” AND WITHOUT WARRANTY OR CONDITION OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL
WARRANTIES AND CONDITIONS WITH REGARD TO SUCH LEADS, QUALIFIED APPOINTMENTS,
CONTACT INFORMATION, MATERIALS, AND OTHER DATA, INCLUDING WITHOUT LIMITATION ALL
CONDITIONS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
3.
TO THE MAXIMUM EXTENT
PERMITTED BY LAW, COMPANY AND/OR ITS SUPPLIERS SHALL IN NO EVENT BE LIABLE FOR
ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES
OF ANY KIND INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, LOSS OF DATA,
LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF OPPORTUNITY, DAMAGE TO REPUTATION,
THIRD-PARTY CLAIMS, PERFORMANCE OF WEBSITE, INABILITY TO ACCESS CUSTOMER
ACCOUNTS, FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION SOFTWARE,
PRODUCTS, SERVICES, GRAPHICS, LEAD CONTACT INFORMATION, QUALIFIED APPOINTMENT
CONTACT INFORMATION, YOUR COMMUNICATIONS WITH LEADS OR QUALIFIED APPOINTMENTS,
OR LEAD OR QUALIFIED APPOINTMENT INFORMATION GENERALLY, WHETHER BASED ON
CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, FRAUD, OR DIRECT OR INDIRECT
CONDUCT REGARDLESS OF WHETHER COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF
DAMAGES.
4.
IN NO EVENT SHALL
COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
LEADS, THE QUALIFIED APPOINTMENTS, AND THE WEBSITE, WHETHER IN CONTRACT, TORT
OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT ACTUALLY PAID
BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF ANY
ACT, OCCURRENCE, OR OMISSION FIRST GIVING RISE TO ANY CLAIM BY OR DAMAGE TO
CUSTOMER.
IF YOU DISAGREE
WITH ANY PORTION OF THIS DISCLAIMER OR THE TERMS PROVIDED IN THIS AGREEMENT,
YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE AND REFRAIN FROM USING THE
WEBSITE AND ACCESSING ANY LEADS OR QUALIFIED APPOINTMENTS.
B.
Indemnification. Customer shall
indemnify, defend, and hold harmless Company, its affiliates, their respective
partners, directors, officers, employees, members, managers, shareholders,
contractors, representatives and agents against any and all actions, claims,
suits, proceedings, liabilities, losses, damages, expenses, and costs
(including reasonable attorneys’ fees and related expenses) (each, a “Claim”)
which arise from or relate to (a) Customer’s use of the Website, (b) Customer’s
use of the Leads or Qualified Appointments, Lead or Qualified Appointment related
data, or Consumer Information, (c) any misrepresentation, breach or alleged
breach of this Agreement (including, without limitation, any representation or
warranty contained herein) by Customer, its affiliates, or its/their respective
partners, directors, officers, employees, members, managers, shareholders, contractors,
representatives, and agents, (d) any dispute between Customer and any of its
clients, or (e) Customer’s violation of applicable law or regulation.
C.
Acknowledgment. Customer acknowledges and agrees that (a) websites owned by
Company, its affiliates, or third parties may now and/or in the future include
customer reviews of Customers provided by users of such website (the “Third
Party Reviews”), (b) Company has no obligation to review, verify, edit or
otherwise censor any Third Party Reviews, and (c) Company reserves the right to
remove, screen, edit, or reinstate Third Party Reviews at any time in its sole
and absolute discretion for any reason or no reason, and without notice to Customer.
Customer shall not offer incentives of any kind, such as discounts, refunds,
gift cards, contest entries, payments, offers, or deals in exchange for Third
Party Reviews of Customer, or to prevent or remove Third Party Reviews. To the
maximum extent permitted pursuant to applicable law, Customer releases Company,
its affiliates, and their respective shareholders, officers, directors,
employees, independent contractors and representatives (the “Company Parties”)
from any and all claims, demands, actions, causes of action, judgments,
penalties, settlements, losses and liabilities, whether known or unknown,
relating to or arising from any Third Party Reviews or any other act or
omission of any Consumer, client, homeowner, potential customer, Lead, Qualified
Appointment or other service provider. In furtherance of the foregoing, Customer
waives all rights against the Company Parties, which may exist under California
Civil Code section 1542 and/or any similar state or federal law. California
Civil Code section 1542 provides as follows: “A general release does not extend
to claims that the creditor or releasing party does not know or suspect to
exist in his or her favor at the time of executing the release and that, if
known by him or her, would have materially affected his or her settlement with
the debtor or released party.”
D.
Confidentiality. For purposes of this Agreement, “Confidential Information” shall
mean all data and information, of a confidential nature or otherwise, disclosed
during the term of this Agreement by Company (“Disclosing Party”) to Customer
(“Receiving Party”), as well as information that the Receiving Party knows or
should know that the Disclosing Party regards as confidential including, but
not limited to: (i) Lead or Qualified Appointment contact information, business
plans, strategies, know how, marketing plans, suppliers, sources of materials,
finances, business relationships, personally identifiable end-user information,
pricing, technology, employees, trade secrets and other non-public or
proprietary information whether written, verbal, recorded on tapes or in any other
media or format; and (ii) any information marked or designated by the
Disclosing Party as confidential. The Receiving Party agrees to hold all
Confidential Information in trust and confidence and, except as may be
authorized by the Disclosing Party in writing, shall not use such Confidential
Information for any purpose other than as expressly set forth in this Agreement
or disclose any Confidential Information to any person, company or entity,
except to those of its employees and professional advisers: (a) who need to
know such information in order for the Receiving Party to perform its
obligation hereunder; and (b) who have entered into a confidentiality agreement
with the Receiving Party with terms at least as restrictive as those set forth
herein. Confidential Information shall not include any information that the
Receiving Party can verify with substantial proof that: (1) is generally
available to or known to the public through no wrongful act of the Receiving Party;
(2) was independently developed by the Receiving Party without the use of
Confidential Information; or (3) was disclosed to the Receiving Party by a
third party legally in possession of such Confidential Information and under no
obligation of confidentiality to the Disclosing Party. The Receiving Party
agrees that monetary damages for breach of confidentiality may not be adequate
and that the Disclosing Party shall be further entitled to injunctive relief,
without the requirement to post bond.
E.
Representations and
Warranties. You represent and
warrant that: (i) you have the power and authority to enter into and
perform your obligations under this Agreement; (ii) when creating a login
account on Website this Agreement will constitute a legal, valid, and binding
obligation of you, enforceable against you in accordance with this Agreement’s
terms and conditions; (iii) Customer is in good standing in the state of
Customer’s organization; (iv) Customer is qualified to do business in each
state in which Customer provides products and services and has in effect and
good standing all licenses and permits necessary or required to provide such
products and services; (v) Customer will not violate any federal, state, or
local laws, rules, regulations, and ordinances, including, without limitation,
the CAN-SPAM Act of 2003 (as amended), the Telephone Consumer Protection Act,
the Fair Credit Reporting Act and any/all applicable state Do Not Call List
requirements (collectively, “Laws”) applicable to Customer’s products or
services, Customer’s contacting of Leads or Qualified Appointments, or Customer’s performance hereunder; (vi) Customer will not
violate the rights of any third party including, without limitation,
infringement or misappropriation of any copyright, patent, trademark, trade
secret or other proprietary/intellectual property right; (vii) Customer’s
products or services will not target consumers under the age of eighteen (18);
(viii) Customer is not, nor is Customer acting on behalf of any person or
entity that is prohibited from engaging in transactions with U.S. citizens,
nationals, or entities under applicable U.S. law and regulation including, but
not limited to regulations issued by the U.S. Office of Foreign Assets Control
(“OFAC”); (ix) Customer is not, nor is Customer acting on behalf of any person
or entity that is, a Specialty Designated National (“SDN”), as OFAC may so
designate from time to time; (x) neither Customer, nor any employee of
Customer, is or has been under investigation or fined by the Federal Trade
Commission or any other governmental agency related to the offering of offer
and sale of products and/or deceptive advertising; (xi) Customer shall
implement such administrative, physical, and technical security measures as
required by applicable Laws and/or as necessary, to: (a) ensure the secure
handling, transmission, storage, and disposal of any/ all Consumer Information,
Lead information, or Qualified Appointment information which Customer holds or
handles; (b) protect against any threats or hazards to the security and
integrity of such Consumer Information, Lead information, or Qualified
Appointment information; (c) protect against any unauthorized access to or use
of such Consumer Information, Lead information, or Qualified Appointment
information; (d) use commercially reasonable efforts to cause its permitted
transferees to exercise, all due care with respect to all Consumer Information,
Lead information, or Qualified Appointment information and the collection,
handling, delivery, processing and transmission thereof, including, without
limitation, with respect to confidentiality and security and any consent or
authorization necessary to use such information as contemplated hereby; (e)
comply, and will use commercially reasonable efforts to cause its permitted
transferees to comply, with all applicable privacy Laws with respect to their
possession and use of any Consumer Information, Lead information, or Qualified
Appointment information (including, without limitation, the use, unauthorized
access, confidentiality and security of Consumer Information (and procedures
related to the foregoing)) and all applicable Laws regarding email marketing
and telemarketing activities.
F.
Customer is Based or in
Compliance with all United States Laws and Regulations. Customer hereby represents and warrants that it is and shall be
in compliance with all federal, state and local laws of the United States in
which Customer is transacting business and using Lead or Qualified Appointment information.
Customer understands and acknowledges that Company and Website are intended to
be made available to persons that are based in the United States and who have
proper business permits and licenses to provide the types of services that are
being requested by Leads or Qualified Appointments.
VI.
CERTAIN DEFINITIONS
Capitalized terms
used herein shall have the meanings ascribed to them throughout this Agreement.
Certain other terms are defined below:
“Lead” means the
contact information pertaining to a Consumer.
“Customer” means a
person or entity that created a login account on Website. References to “you”
and “your” also refer to Customer.
“Consumer” means any
person who is potentially interested in purchasing products or services.
“Consumer
Information” means the personally identifiable information regarding
a Consumer.
“Qualified
Appointment” means a limited license to use the information of a Consumer
which may include some or all of the following information about such Consumer
and their potential need for services: a day, time and location that the Consumer
has agreed to be available to discuss the services the Consumer may be
interested in purchasing, name, address, phone number, zip code, utility spend,
utility provider, project material, project size and scope, project budget and
any other information that Company may from time to time collect from a
Consumer.
VII.
MISCELLANEOUS PROVISIONS
A.
Entire Agreement. This Agreement, in
addition to all terms and conditions provided on Website, embodies the entire
agreement and understanding between you and Company on the subjects addressed
herein and supersedes all prior discussions, agreements, or understandings
between you and Company, whether express or implied. If there are any
conflicting terms, the terms of this Agreement shall take precedence.
B.
Modification. Except when and if modified by Company by posting a new
version of this Agreement to LeadDepot.com or the appropriate subpage, which
the Company may do at any time, this Agreement may not be modified or amended.
C.
Severability. If, for any reason, any provision or partial provision of
this Agreement is held invalid, such invalidity shall not affect the remainder
of such provision or any other provision of this Agreement not so held invalid,
and each other provision, or portion thereof, shall, to the full extent
consistent with law, continue in full force and effect.
D.
Headings. The headings of the paragraphs of this Agreement are
inserted for convenience of reference only and are not intended to be a part
of, or to affect the meaning or interpretation of, this Agreement.
E.
Waiver. The parties agree that if, and to the extent that, any party
does not require strict compliance with the provisions of this Agreement by any
other party, that action or inaction shall not constitute a waiver of, or
otherwise affect or prejudice in any manner, that party’s future rights or
remedies under this Agreement, including the right to subsequently require
strict performance of such provisions. No waiver by any party of a breach of
this Agreement by any other party shall be deemed to be a waiver of any other
breach by that other party (whether before or after and whether or not of the
same or similar nature), and no acceptance of payment or performance by any
party after any breach by any other party shall be deemed to be a waiver of any
breach by that other party, whether or not the first party knows of the breach
at the time it accepts such payment or performance.
F.
Electronic Signatures. Any other documents to be delivered in connection herewith
may be electronically executed in that Customer taking the affirmative action
of creating a login account on Website is, in fact, accepting to be bound by
this Agreement in its entirety.
G.
No Third-Party
Beneficiaries. Except for affiliates of Company, which are
intended third party beneficiaries of this Agreement, nothing in the Agreement
is intended or shall be construed to give any person other than the parties
hereto, their respective successors and assigns, any legal or equitable right,
remedy or claim under or in respect of the Agreement or any provision contained
herein. Each party agrees that due to the unique nature of the Leads, Qualified
Appointments, Consumer Information, and other Confidential Information provided
by Company to Customer hereunder, there may be no adequate remedy at law for
any breach by Customer of its obligations hereunder, and that any such breach
may result in irreparable harm to Company. Therefore, upon any such breach or
threat thereof, Company shall be entitled to appropriate equitable relief,
including without limitation injunctive relief, in addition to any and all
remedies available at law.
H.
Notices. Any and all notices, whether voluntary or required under this
Agreement, to Company shall be made to:
Lead Depot
Email:Support@LeadDepot.Com
Customer hereby
consents that Company may send all notices to Customer, whether voluntary or
required under this Agreement, to the email address or any other address that
Customer may provide to Company.
I.
Governing Law. This Agreement shall be
construed under the laws of the State of California.
J.
Jurisdiction and Venue. Any dispute, controversy or claim arising out of or
relating to the Website, the Leads, the Qualified Appointments, or this
Agreement shall be settled by binding arbitration by JAMS in accordance with
JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”). The arbitration shall be heard by one
arbitrator selected in accordance with the Rules, with venue in San Diego
County, California. Judgment upon any
award rendered may be entered in any court having jurisdiction thereof. All parties waive the right, if any, to any
claim that this Agreement, or any part hereof, is invalid, illegal or otherwise
voidable or void. The arbitrator shall
make his or her award no later than thirty (30) calendar days after the close
of evidence or the submission of final briefs, whichever occurs later and shall
deliver to the parties a reasoned opinion detailing the facts and rationale
supporting the award. The decision of the arbitrator(s) shall be final and
binding on all parties. Notwithstanding the foregoing, each party to this
Agreement and/or visitor to the Website waives the right to arbitrate any dispute
as a class action, either as a member or a representative. Class arbitration
(including the presiding over any form of a representative or class proceeding)
and the consolidation of claims made by more than one plaintiff are both
expressly prohibited. The parties hereby agree to arbitrate any dispute solely
on an individual basis. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
WEBSITE, THE LEADS, THE QUALIFIED APPOINTMENTS, OR THIS AGREEMENT. Notwithstanding anything to the contrary, if any
party desires to seek injunctive or other equitable relief that does not
involve the payment of money, then those claims shall be brought in a state or
federal court located in San Diego County, California, and the parties hereby
irrevocably and unconditionally consent to personal jurisdiction of such courts
and venue in San Diego County, California in any such action for injunctive
relief or equitable relief.
K.
Privacy. Your use of the Website shall be subject to Company’s Privacy
Policy, which governs the Website’s data collection practices. You can find a
link to Company’s Privacy Policy at https://leaddepot.com/privacy-policy/.
L.
Taxes. All Fees are exclusive of any and all applicable taxes,
customs, duties, expenses, fees and other charges imposed by any governmental
authority (“Taxes and Expenses”), all of which shall be Customer’s sole
responsibility. For avoidance of doubt, it is possible that Customer’s use of
the Website, Leads, and/or Qualified Appointments may result in Customer owing
Taxes and Expenses to others (e.g., income taxes owed on income earned
following Customer’s closing of a sale to a Lead or Qualified Appointment).
Customer will determine whether any such Taxes and Expenses arise and, if they
do, Customer will timely pay them to the appropriate party.
M.
Relationship. The relationship of Customer and Company is that of independent
contractors and nothing in this Agreement is intended to create or shall be
construed as creating a relationship of joint venture, partners,
employer/employee or principal and agent.
N.
Term. This Agreement shall remain in full force and binding on you so
long as you have access to Website. This Agreement shall also remain in full
force and binding on you for any and all matters, cause of actions, claims,
liabilities, or damages relating to Leads or Qualified Appointments accessed
through the Website, regardless of whether you still have access to Website,
for six years after you accessed or were matched with a Lead or Qualified
Appointments through Company or Company’s partners or affiliates.
