TERMS AND CONDITIONS FOR USE OF AMERICA’S LEAD SOURCE SERVICES, RECEIPT OF CONSUMER CONTACT INFORMATION AND FOR USE OF THE AMERICASLEADSOURCE.COM WEB SITE.
USE THE AMERICA’S LEAD SOURCE WEB SITE
Definitions: For the purposes of this Agreement, the terms set forth below shall have the following meanings:
- "Agreement" refers to this Terms of Service Agreement AND your Purchase Order;
- "Purchase Order" shall mean one or more separate documents governed by this Agreement specifying the parameters of the Leads, including the Fees for obtaining and using such Leads, made available to Broker and in accordance herewith;
- "you" and "yours," refer to you, a visitor/User to the America’s Lead Source web site, as well as anyone you authorize to visit and use the America’s Lead Source web site on your behalf;
- "America’s Lead Source," "us" "we," and "our" and "ours" refer to America’s Lead Source and any affiliates of America’s Lead Source whose products or services are offered on the America’s Lead Source web site;
- "AmericasLeadSource.com Web Site" refers to the web site located at www.AmericasLeadSource.com and www.ALSource.com related pages, or any linked pages and web sites hosted or sponsored by America’s Lead Source. These sites include, but are not limited to www.HotLoan.com, www.losemydebt.com , ForeclosureFighters.com and www.SimpleLoanQuote.com.
- "Consumer" shall mean an individual seeking a mortgage loan quote or service whose personally identifiable information is the subject of a Lead;
- "Lead" shall mean a mortgage loan request provided by America’s Lead Source to Broker.
- "Duplicate Lead" shall mean a Lead that has been received by Broker from America’s Lead Source within the previous thirty (30) days from a Consumer identified by the same first and last name, address, email address or phone number;
- "Valid Lead" shall mean a Lead that meets one of the following criteria: (i) the lead does contains a valid name, one valid contact phone number, a valid address and is not for a customer who is subsequently proven be a victim of identity theft; (ii) the Lead is not a Duplicate Lead, and (iii) the Lead is not for financing raw land, a mobile home or commercial property;
- "Fresh Lead" shall mean a Valid Lead that has entered into the America’s Lead Source database and made available for purchase by a broker within 3 business days of receipt from any source, regardless of the age of the data within the lead itself.
- "Invalid Lead" shall mean a Lead that meets one of the following invalidation criteria: (i) the lead does not contain a valid name, one valid contact phone number, a valid address; (ii) the Lead is a Duplicate Lead, (iii) the Lead is for financing raw land, a mobile home or commercial property or (iv) , the lead is for a customer who is subsequently proven be a victim of identity theft;
- “Real Time” leads are leads that are delivered 24 hours a day according to unique filtering criteria and sent to Broker seconds after the borrower submits their information;
- "Batched" leads are leads that are automatically sent to a Broker each business day according to unique filtering criteria and lead delivery method(s) established by Broker.
America’s Lead Source is committed to maintaining the privacy and security of any and all information that you provide to America’s Lead Source through the www.AmericasLeadSource.com
Please note that privacy policies of America’s Lead Source's affiliates or third parties may apply to information you provide on the AmericasLeadSource.com Web Site. In addition, web sites linked to the AmericasLeadSource.com Web Site may have separate privacy policies.
Use And Limitations Of The AmericasLeadSource.com Web Site
Except where we specify otherwise, America’s Lead Source offers you access to the AmericasLeadSource.com Web Site solely for your personal and non-commercial uses. You promise that you will not use the AmericasLeadSource.com Web Site, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. You agree that you will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other web site, transfer or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the AmericasLeadSource.com Web Site. This means, among other activities, that you agree not to engage in the practices of "screen scraping," "database scraping," or any other similar activity. You agree that you will not use the AmericasLeadSource.com Web Site in any manner that could damage, disable, overburden, or impair the AmericasLeadSource.com Web Site or interfere with any other party's use and enjoyment of the AmericasLeadSource.com Web Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the AmericasLeadSource.com Web Site.
If and when requested byAmericasLeadSource.com, you agree to provide true, accurate and complete user information and to refrain from impersonating or falsely representing your affiliation with any person or entity. Except with the written permission of America’s Lead Source, you agree that you will not access or attempt to access password protected, secure or non-public areas of the AmericasLeadSource.com Web Site.
You agree that America’s Lead Source may in its sole discretion and at any time terminate your access to and use of the AmericasLeadSource.com Web Site, or any part thereof, with or without notice.
The AmericasLeadSource.com Web Site contains content and information originated by America’s Lead Source, affiliates of America’s Lead Source or unaffiliated third parties. America’s Lead Source makes available such content and information through the AmericasLeadSource.com Web Site as a public service, for the sole purpose of aiding you, the individual consumer. America’s Lead Source, therefore, cannot guarantee the accuracy, sufficiency, correctness, veracity, completeness, or timeliness of such information. You are responsible for confirming the sufficiency and reliability of any such information. This means, for example, that all of the information and materials contained in the AmericasLeadSource.com Web Site-including any terms and conditions necessary to obtain a loan or other products or services-are subject to change at any time. Not all products and services are available in all geographic areas. Your eligibility for particular products and services is subject to final America’s Lead Source determination and acceptance.
Our services are only available to principals and employees of duly organized and licensed mortgage brokers or lenders whose state licenses are in good standing and who meet our eligibility criteria. America’s Lead Source, in our sole discretion, reserves the right to determine the eligibility of Broker to receive Leads. Our "Eligibility Criteria" shall mean the following criteria as applied to a Broker:
- Broker must be licensed and in good standing as a residential mortgage broker in all applicable jurisdictions with all applicable regulatory authorities;
- Broker must not engage in, be known to or have a reputation for engaging in predatory lending practices or other conduct which violates applicable law, regulations, rules of conduct or ethics codes of brokers;
- Broker must not engage in fraud or unfair competition or practices in violation of privacy and/or anti-spam laws;
- That neither you or anyone in your charge engages or condones any prohibited activity(s) or conduct referenced above; and
- That you are authorized to enter into this Agreement and that the performance of the respective obligations hereunder do not violate any other agreement to which you are a party.
CONDUCT and Broker "Best Practices".
If, after you contact a Lead, and the consumer requests to be removed from any further contact from you and/or America’s Lead Source, you agree to comply with this request for your own records AND you agree to forward that consumers request to America’s Lead Source via e-mail at email@example.com
within five (5) business days of your receipt of the request.
Upon the delivery of Leads, You represent, warrant and agree to:
- Contact the Consumer in a timely fashion;
- Offer your most competitive rates and terms to the Consumer (lowest rates and fees for borrowers and loans of like characteristics, without regard to payments to America’s Lead Source under this Agreement;
- To not pass through to the Consumer the payments you made to America’s Lead Source to obtain the Lead under this Agreement;
- To offer your highest level of service to the Consumer.
- That you will not use or disclose any of the Consumer information in violation of any applicable state, federal or local law, rule or regulation (including, without limitation, any applicable privacy laws and the Fair Credit Reporting Act);
- That you will not use or disclose any of the Consumer information for any other purpose or use (whether by You or any other person or entity associated with You) other than for You to provide the Consumer a direct quote for a loan, including, but not limited to selling, renting, leasing or transferring the information contained in the Lead to any person or entity other than Broker or using the information either yourself or through any of Your affiliates or any other person or entity to offer any other products or services or contacting the Consumer for any other reason. If You or anyone affiliated with you breaches any of the provisions in this Section, then (i) You agree to indemnify, defend and hold harmless America’s Lead Source for all Claims arising out of or related to such breach in accordance and (ii) America’s Lead Source may immediately terminate this Agreement without notice or a right to cure.
- To respect a prospective borrowers privacy and if received, their demand to be removed from any future contact list by you and to report same to America’s Lead Source via e-mail at firstname.lastname@example.org within five (5) business days of your receipt of the request
FOR SERVICE - PURCHASE ORDER
Registration is available to eligible members only. You may only register one time for our service. To register, you must complete a Purchase Order wherein you provide your business contact information, billing information, initial lead type and filter criteria, and your initial lead block purchase commitment(s). The Purchase Order is a legally binding contract and is part of these Terms of Service, incorporated herein by this reference as though fully set forth herein. After you register, you may set up sub-accounts if you need to have more filters or set up accounts for other loan officers at your company. Your user account shall be provisionally activated when America’s Lead Source, LLC has received your fully executed Purchase Order, you affirmatively agree to these terms. Permanent activation will occur only when America’s Lead Source LLC has received confirmation that you’re initial Block Commitment payment(s) has cleared by your bank or Credit Card Company. You can expect a processing delay of up to ten business days from the date you authorize payment on your credit card or the date we receive your check for your Block Commitment payment to clear your bank or Credit Card Company. All terms and conditions of this Terms of Service agreement apply during this provisional activation period. America’s Lead Source, LLC reserves the right to deactivate your account at any time during this provisional activation period without prior notice to you.
You may only purchase leads once your account has been activated and there are sufficient funds on deposit in your user account to purchase the leads you choose. Most leads sold by America’s Lead Source are non-exclusive and may be sold to multiple brokers according to filtering criteria established by individual brokers and the lead data itself.
There are currently two service levels available to you, Batched Leads and Manually selected leads. You can combine the levels of service if you choose at any time. Lead costs vary depending on the type of service you request and the type and age of lead requested. Regardless of the level of service and type of lead requested, with the exception of your initial Block and volume commitments set forth in your initial Purchase Order, if you decide to buy leads, the price for the leads will be based on the America’s Lead Source pricing schedule in effect at the time you buy the leads. YOUR PURCHASE IS A BINDING CONTRACT subject to the guarantee, return policies and other terms set forth in these Terms of Service and in your initial Purchase Order. Your account will be immediately debited for the total initial commitment amount(s) agreed to in your Purchase Order. After your Initial Commitment is satisfied as set for below, your account will be immediately debited for the total purchase amount based upon the current market price for the leads you accept as stated in the America’s Lead Source pricing schedule in effect at the time you buy the leads.
Due to the nature of internet based lead generation, America’s Lead Source cannot guarantee that Purchaser will not have acquired the same lead from other sources, thus, America’s Lead Source does not offer credits for duplicate leads, however, an Invalid Lead(s) shall be exchangeable for new lead(s) of comparable quality as the one(s) returned. THERE ARE NO CASH REFUNDS OFFERED BY AMERICA’S LEAD SOURCE.
Check, eCheck or Draft: If you use a check, including an eCheck or a faxed check, you agree to not stop payment on the check for any reason. If you are dissatisfied with our services or any Lead or Leads you have purchased using your check or draft you must follow the return policy and procedures set forth under these Terms of Service. If your check or draft is not honored by the bank for any reason, you are subject to and will be charged a return check fee equal to three (3) times the face value of the check up to a maximum of one hundred ($100) dollars, which you agree to pay in addition to the check face amount. Your user account balance may not reflect a deposit made into your user account until your check has been deposited into our bank, processed and has cleared your bank. This date may differ from the date you send your payment or the date we receive your check.
Credit Card: Should the Cardholder elect to make payment for services by way of Credit Card, it is herein understood and agreed by the Cardholder that Credit Card charge-backs to the account of America’s Lead Source are not accepted or allowed for any reason. The Cardholder further herein agrees and states to all parties concerned, that no Credit Card charge-backs will be made involving any transactions for “Any Reason Whatsoever” and that all rights to a Credit Card charge-back involving any transaction with America’s Lead Source are herein surrendered and waived by the Cardholder.
For Brokers that America’s Lead Source determines meet the Eligibility Criteria, Leads shall be provided pursuant to the parameters defined in Your initial Purchase Order and/or according to the filtering criteria selected with your online account. America’s Lead Source shall endeavor to make Leads available each business day excluding weekends holidays as defined below. Broker may choose to have Leads provided by email, LeadMailbox
, Root Exchange,
HTTPS Post, or XML; however, America’s Lead Source shall have no responsibility for any service or server outages or failure of Broker’s email system or Internet access.
America’s Lead Source defines a "business day" as follows:
- Each 24 hour period beginning at 12:01 A.M. Pacific Standard Time on Monday through 12:00 midnight Friday shall be considered as one business day.
- Saturday and Sunday are not considered as business days.
- The following holidays are not considered business days: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas.
America’s Lead Source defines a "business week" as comprised of five (5) consecutive business days.
CONTENT AND GUARANTEE
Real Time Leads and Batched Leads: Lead costs reflected under these product types are influenced by the filter choices you make and your daily volume. By electing this level of service, leads are automatically sent to you each business day based upon the filter criteria you choose. When reference is made on our website as to the age of a lead, that age is stated in terms of business days, not calendar days.
Leads are procured from varying commercial resources. America’s Lead Source employs internal data validation procedures and makes every effort to ensure you receive only valid leads. THESE EFFORTS MAY INCLUDE A LOCK-DOWN PERIOD TO PHONE VERIFY THE LEADS BEFORE THEY ARE DISTRIBUTED. Nevertheless, as the actual age of the data received may be different than the date America’s Lead Source received the lead, occasionally a lead may contain information that, though consistent with our validation criteria, is no longer valid.
We guarantee each Lead to be a valid lead as defined in the "Definitions" section of this Agreement. Leads provided that are subsequently shown to be Invalid Leads as defined in prior sections of this Agreement, will be replaced with a valid lead.
Data provided within a lead is inputted solely by the consumer and not America’s Lead Source or anyone affiliated with us. Consumers do not submit their contact information directly to America’s Lead Source. A lead may come to America’s Lead Source from a variety of provider commercial sources only some of which may be owned by us. We do not guarantee the age of the data contained in a lead , the age of the consumers OPT-In request or with whom they originally submitted their Opt-in contact information or that the consumer, when contacted, will remember submitting their contact information on an OPT-in request. WE DO NOT GUARANTEE THAT THEIR EMAIL ADDRESS IS CORRECT OR THAT THEIR STATED HOME VALUE, REQUESTED LOAN AMOUNT, CREDIT QUALITY, LTV, OR INTEREST RATE IS EXACTLY CORRECT AS THESE ARE ESTIMATES ENTERED BY THE CONSUMER WHEN COMPLETING THE APPLICATION. How you approach and handle each lead is up to you and not under the control of America’s Lead Source. As such, WE DO NOT GUARANTEE YOU'RE RESULTS OR THAT YOU WILL CLOSE ANY LOANS WITH OUR LEADS. Since most of our leads are non-exclusive, the customer may have started a loan process with another Loan Officer, so this is not a valid reason for a dispute or credit. Similarly, Consumers often will change their mind after they submit a request for contact and thus not be willing to apply for a loan with you, so this is not a valid reason for a dispute or credit. We recommend contacting the customer as soon as you get the lead so you can be the first to earn their business.
America’s Lead Source will monitor your disputes and returns to determine their validity. America’s Lead Source reserves the right to monitor your disputes and returns to determine their validity. America’s Lead Source, reserves the right to verify your dispute rational and in our sole discretion, determine if your dispute is valid. In the event your dispute is determined to be without merit, the charge for the valid lead will stand against your account, no credit will be issued and, a dispute validation penalty will automatically be charged to account according to the terms set fort in our Lead Return Policy. You will be notified via your account report of our actions to accept or deny your dispute within five (5) working days of receipt of your dispute. ABUSE OF THIS RETURN POLICY WILL NOT BE TOLERATED. In the event we determine in good faith that your dispute is without merit according to our lead return policy, in addition to not receiving a credit of the lead cost, your account will automatically be charged a dispute validation fee of $10 for each disputed lead proven to be without merit. In addition to all other remedies under this contract and in law, America’s Lead Source reserves the right to terminate your account if abuse of this lead return policy is proven to exist.
America’s Lead Source reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to review these Terms of Service periodically.
Real Time Leads and Batched Leads: Returning invalid leads couldn't be easier. If any lead provided to you does not contain valid basic contact information as described in the previous guarantee section, within five(5) days of purchase, simply login to your online account at www.AmericasLeadSource.com
. Then click on Return Lead and insert the reason for returning the Lead.
ALL CREDITS ARE SUBJECT TO THE LEAD DATA QUALITY GUARANTEES AND RETURN POLICYS STATED IN PREVIOUS SECTIONS OF THIS AGREEMENT. ALL CREDIT REQUESTS (NOT AUTOMATICALLY PROCESSED BY OUR AUTOMATED SYSTEM AS STATED ABOVE) MUST BE SENT BY E-MAIL AND VERIFIED VIA TELEPHONE WITH THE MEMBER AND AN AUTHORIZED AMERICA’S LEAD SOURCE REPRESENTATIVE. NO CREDITS WILL BE PROCESSED OR ISSUED BASED UPON A VOICE TELEPHONE MESSAGE. NO EXCEPTIONS.
The data form provided to you by America’s Lead Source is proprietary to America’s Lead Source and thus provided to you in confidence and for your individual business use only under this contract. YOU MUST KEEP ALL LEAD DATA CONFIDENTIAL. You may use the Lead data provided only for the business purpose contemplated under this Agreement. You may tell the prospective borrower that you got their quote request from America’s Lead Source, however, without the prior written permission of America’s Lead Source YOU MAY NOT FORWARD, COPY, OR OTHERWISE DISTRIBUTE IN ANY FORM OR MEDIA, THE ACTUAL LEAD DATA TO THE PROSPECTIVE BORROWER OR ANY OTHER THIRD PARTY FOR ANY REASON NOR MAY YOU RESELL THE DATA.
You agree that you will not use America’s Lead Source or America’s Lead Source data for any unauthorized use including but not limited to chain letters, junk mail, "spamming", telephone solicitations in violation of any state or federal Do-Not-Call registry, or as a basis for any use or distribution lists to any person who has not given specific permission to be included in such a process. You further agree not to use America’s Lead Source or America’s Lead Source data to send any messages or materials that are unlawful, considered an act(s) against public policy, discrimination of any kind, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. America’s Lead Source reserves the right to terminate User's account immediately and without notice, if it becomes aware and determines, in its sole discretion, that User is violating any of the foregoing guidelines.
You will be provided a confidential account and be allowed to choose your own confidential password. YOU ARE THE ONLY ONE AUTHORIZED BY AMERICA'S LEAD SOURCE TO USE YOUR ACCOUNT AND PASSWORD. You are solely responsible for maintaining the confidentiality of your account ID and password. You are solely responsible for all uses of your account, whether or not authorized by you. You agree to immediately notify America’s Lead Source of any unauthorized use of your account. Unless otherwise agreed to in writing, you will not be entitled to a return credit or refund for Lead(s) purchased through your account prior to you notifying us of an unauthorized use.
Some Links on the America’s Lead Source web site may let you leave the America’s Lead Source web site. You understand the linked sites are not under the control of America’s Lead Source and America’s Lead Source is not responsible for the contents or operation of any linked site or any link contained in a linked site, or any changes or any updates of such sites. America’s Lead Source is not responsible for web casting or any other form of transmission received from any linked site. America’s Lead Source is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by America’s Lead Source of the linked site or any association with their operators.
RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the parties. Neither party shall have authority to contract for or bind the other in any manner whatsoever.
DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
THE AMERICA’S LEAD SOURCE SERVICE PROVIDED IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AMERICA’S LEAD SOURCE EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE AMERICA’S LEAD SOURCE SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY AMERICA’S LEAD SOURCE, ITS EMPLOYEES, LICENSORS OR AGENTS WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL AMERICA’S LEAD SOURCE, AMERICA’S LEAD SOURCE, LLC, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE AMERICA’S LEAD SOURCE SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE AMERICA’S LEAD SOURCE SERVICE; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, LOSS OF OR DAMAGE TO DATA, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO AMERICA’S LEAD SOURCE RECORDS, PROGRAMS OR SERVICES. THE SUBSCRIBER HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL APPLY WHETHER OR NOT AMERICA’S LEAD SOURCE IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE FROM AMERICA’S LEAD SOURCE AND ITS AFFILIATES.
IN THE EVENT THAT EITHER PARTY BREACHES ITS OBLIGATIONS UNDER THIS AGREEMENT, THE NON-BREACHING PARTY SHALL HAVE THE RIGHT TO EXERCISE ALL RIGHTS AND REMEDIES AVAILABLE TO IT AT LAW OR IN EQUITY; PROVIDED, HOWEVER, SUBJECT TO THE DAMAGE AMOUNT LIMITATION SET FORTH BELOW, THE LIABILITY OF THE BREACHING PARTY SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES ONLY AND ALL OTHER DAMAGES AND REMEDIES ARE EXPRESSLY WAIVED. IN NO EVENT SHALL EITHER PARTY INCLUDING AMERICA’S LEAD SOURCE, LLC, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES IN TORT, CONTRACT OR OTHERWISE INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR CLAIM. LIABILITY OF AMERICA’S LEAD SOURCE, AMERICA’S LEAD SOURCE, LLC, ITS AFFILIATES, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE TWO (2) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100).
NO ACTION ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER SUCH CAUSE OF ACTION OCCURS.
THE TERMS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
Neither party shall be liable in any way for its failure to perform hereunder, other than its failure to pay any monies due and owing hereunder, if such failure is occasioned by any of the following: war; fire; flood; interruption of transportation; embargo; accident; explosion; governmental orders, regulations, restrictions, priorities or rationing; strike, lockout or other labor problems; or any cause beyond the reasonable control of the non-performing party provided, however, that the non-performing party shall make a good faith effort to perform.
All contents of the America’s Lead Source Web Site are proprietary to America’s Lead Source, LLC its successors and assigns, and/or its suppliers and are protected under U.S.A. and international Copyright and Trademark laws. All rights are reserved. You may not download and/or save a copy of any of the screens except as otherwise provided in this Agreement; you may, however, print a copy of the information on this web site for your personal records to be used as a reference. America’s Lead Source LLC does not grant any license or other authorization to any user of its trademarks, service marks, copyrightable material or other intellectual property by placing them on this web site. America’s Lead Source LLC reserves any rights not expressly granted herein.
TERM OF AGREEMENT AND TERMINATION
THIS AGREEMENT IS NON-CANCELLABLE BY BROKER DURING THE FIRST THIRTY (30) DAYS FOLLOWING ACTIVATION.
This Agreement shall remain in force and effect as long as you hold an account with America’s Lead Source. This Agreement is automatically renewed each time you access the America’s Lead Source Web Site and/or log-in to your account and/or use our services. You may close your account at any time after the 30th calendar day following your account activation and terminate this Agreement by providing not less than five (5) days prior written notice sent by traditional postal service mail, courier or facsimile to America’s Lead Source of your desire to cancel your account. Absent such a voluntary cancellation this agreement may be terminated immediately by either party:
- In the event the other party suffers any insolvency proceeding, either voluntary or involuntary, or is adjudicated bankrupt or makes any assignment for the benefit of creditors. Such termination shall not relieve the party in proceedings from liability for the performance of its obligations arising prior to such termination and shall be in addition to all other rights and remedies the terminating party may have available to it under this Agreement, at law or in equity; or
- At any time upon written notice (including electronic mail) with or without cause by America’s Lead Source in the event of a material breach by you of any of the Terms of Service set forth herein.
- Upon written notice to the other party if such party reasonably believes that (1) performance of this Agreement violates or is being conducted in a manner that does not comply with any applicable law, regulation, licensing requirement, ordinance or order, and (2) that such violation or non-compliance cannot be remedied or that the cost of remediation or compliance is prohibitive.
California law shall govern this Agreement, and any dispute arising from the relationship between the parties to this Agreement, excluding any laws that direct the application of another jurisdiction's laws and without regard to conflicts of law principles. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and cost and expenses incurred, subject to the Limitation of Liabilities clause. The parties consent to the exclusive jurisdiction and venue of the courts of the State of California or to any Federal Court located within the southern district for the State of California.
INTERPRETATION AND CONSTRUCTION
No provision of this Agreement shall be construed in favor of or against America’s Lead Source or you by reason of the extent to which any such party or its counsel participated in the drafting thereof. The parties agree that California Civil Code Section 1654 shall not apply to the terms of this Terms of Service Agreement. No direct benefit is intended to be conferred by this Agreement on any person not a party to this Agreement and any benefit which may be actually conferred is purely incidental. In the event of any conflict between the terms of this Agreement and the Purchase Order, the terms of this Agreement shall control.
Any dispute or claim arising hereunder shall be submitted to binding arbitration in San Diego, California, and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, ("AAA"), and the parties expressly waive any right they may otherwise have to cause any such action or preceding to be brought or tried elsewhere. Any such dispute or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statues of limitations; (ii) the appointed arbitrator must be a former or retired judge or attorney at law with at least five (5) years experience in the substantive area of this Agreement; (iii) all proceedings involving the parties shall be reported by a certified shorthand reporter and written transcripts of any such proceedings shall be prepared and made available to the parties; (iv) the decision of the arbitrator or arbitrators must be made within ninety (90) days from the date the arbitration proceedings are initiated; (v) costs and fees of the arbitrator shall be borne by the non-prevailing party, unless the arbitrator or arbitrators determine otherwise; (viii) the award or decision of the arbitrator, which may include equitable relief, and reasonable attorneys fees and costs to the prevailing party, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter. The parties agree that in connection with any such arbitration, the following provisions of the California Code of Civil Procedure, as enacted or hereafter amended, shall apply: Section 1856, et seq., "The General Principles of Evidence"; Section 2016, et seq., "The Civil Discovery Act"; and Section 1283.5, "Manner of Taking Deposition."
Should either party file an action contrary to this provision, the other party may recover reasonable attorneys' fees and costs of not less than one thousand ($1000) dollars and not more than the actual reasonable attorneys fees and costs incurred in defending such an action and subject to written verification, proof and approval by a court of competent jurisdiction with whom the action in question was heard.
If any provisions of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely confidentiality/non-disclosure, warranty, indemnification, liability and limits thereon, rights and obligations upon and following termination and assignment.
You agree to defend, indemnify and hold harmless America’s Lead Source against any and all claims, losses, liability costs and expenses (including but not limited to reasonable attorneys' fees) arising from your violation of these Terms and Conditions or any third-party's rights, (including, without limitation, infringement of any copyright trademark, service mark, trade secrets, right of privacy or publicity or any other third party right). The terms of this section shall survive the termination of your relationship with America’s Lead Source.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such action.
You may not sell, mortgage, assign or otherwise transfer any of your rights or obligations under this Agreement to any other person or entity, without the express written consent of America’s Lead Source. Notwithstanding the foregoing, either You or America’s Lead Source may assign its rights and obligations under this Agreement without consent and without notice to the other, and both You and America’s Lead Source shall accept such assignment as a novation, to a successor as a result of a change in business legal structure, corporate restructuring, reorganization, merger, consolidation, or acquisition of all or substantially all of the assigning party's stock or assets, provided that this Agreement shall be binding upon, inure to the benefit of and be enforceable by You and America’s Lead Source and their respective successors and assigns.
This Agreement constitutes the final, complete, and exclusive statement of the terms of this Agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty independent of those expressly set forth in this Agreement. No direct benefit is intended to be conferred by this Agreement on any person not a party to this Agreement and any benefit which may be actually conferred is purely incidental.
America’s Lead Source reserves the right to modify this Terms of Service Agreement and its policies at any time and without advance notice to you, effective upon making the modified provisions available on the America’s Lead Source Web Site. You are responsible for regularly reviewing these documents. Continued use of the America’s Lead Source Web Site after any such changes shall constitute your consent to such changes. America’s Lead Source does not and will not assume any obligation to notify you of any changes to this Terms of Service Agreement.
You're establishing of an account and/or your use of the America’s Lead Source Web Site is evidence that you have read and understand this Terms of Service Agreement as set forth above and that you have had the opportunity to consult with independent counsel of your choice prior to establishing your account and utilizing the services contemplated by this Agreement.
America’s Lead Source reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to review these Terms of Service periodically.
Last updated March 22nd, 2007
PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.