Lead Storm TERMS AND CONDITIONS
Welcome to the Lead Storm web site (the or this "Site"). This Site is owned and operated by Lead Storm (the "Company" or "we" or "us"). This Agreement together with your Lead Order sets forth the Standard Terms and Conditions that apply to your use of Lead StormŽ services. The online Lead Order you complete in conjunction with your account activation is a part of this Agreement and is incorporated herein by this reference as though fully set forth herein.
Please feel free to browse this Site; however, your access to, and use of, this Site is subject to these Terms and Conditions and all applicable laws.
BY VISITING OR USING THE SITE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS, AND THAT SUCH AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND THE COMPANY. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, PLEASE DO NOT VISIT OR USE THE SITE.
Definitions: For the purposes of this Agreement, the terms set forth below shall have the following meanings:
1. "Agreement" refers to these Terms and Conditions AND your Lead Order;
2. "Lead 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;
3. "Consumer" shall mean an individual or entity seeking a quote or service whose personally identifiable information is the subject of a Lead;
4. "Lead" shall mean a Consumer's personally identifiable information obtained by us and provided to you pursuant to a Consumer's request for a quote or service.
5. "Duplicate Lead" shall mean a Lead that has been received by a user from Lead Storm within the previous thirty (30) days from a Consumer identified by the same first and last name, address, email address or phone number;
6. "Valid Lead" shall mean a Lead that meets one of the following criteria: (i) the lead 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; and (ii) the Lead is not a Duplicate Lead.
7. "Fresh Lead" shall mean a Valid Lead that has entered into the Lead Storm database and made available for purchase by a user within 3 business days of receipt from any source, regardless of the age of the data within the lead itself.
8. "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, or a valid address; (ii) the Lead is a Duplicate Lead, or (iii) the lead is for a customer who is subsequently proven be a victim of identity theft.
Use And Limitations Of The Site
Subject to your performance of all of the provisions of this Agreement, the Company hereby grants you a limited, terminable, personal, non-exclusive license to access and use the Site solely as provided herein for your personal and non-commercial uses. Notwithstanding anything to the contrary herein, all rights not specifically granted in the license set forth above shall be reserved and remain always with the Company. You promise that you will not use the 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 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 Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party's use and enjoyment of the 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 Site. You acquire no rights or licenses in or to the Site and materials contained therein other than the limited right to utilize the Site in accordance with the Terms and Conditions. You acknowledge that the Site has been developed, compiled, prepared, revised, selected and arranged by the Company and others through the expenditure of substantial time, effort and money and constitutes valuable intellectual property and trade secrets of the Company and others.
You agree that Lead Storm may in its sole discretion and at any time terminate your access to and use of the Site, or any part thereof, with or without notice. Upon termination, Lead Storm' obligations to you shall cease. However, even after termination, this Agreement will remain in effect. The Site contains content and information originated by Lead Storm, affiliates of Lead Storm or unaffiliated third parties. Lead Storm makes available such content and information through the Site as a public service, for the sole purpose of aiding you, the individual consumer. Lead Storm, 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 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 Lead Storm determination and acceptance.
E-Signatures and Communications
All electronic communications, including any electronic signatures or identifiers of Lead Storm, are being transmitted solely for informational purposes. By making an electronic communication, Lead Storm specifically does not intend to agree, bind, or otherwise consent to any matter for any purpose whatsoever, including loan brokering, loan processing or loan approval, and does not intend that the electronic communication, or any related or associated electronic media or data, to constitute, or to be deemed to constitute, an electronic signature pursuant to any state or federal law or regulation that authorizes the use of electronic signatures.
Our services are only available to principals and employees of duly organized and licensed corporate entities whose state licenses are in good standing and who meet our eligibility criteria. Lead Storm, in our sole discretion, reserves the right to determine the eligibility of users to receive Leads. Our "Eligibility Criteria" shall include the following criteria:
1. You 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;
2. You must not engage in fraud or unfair competition or practices in violation of privacy and/or anti-spam laws;
3. Neither you or anyone in your charge engages or condones any prohibited activity(s) or conduct referenced above; and
4. You are authorized to enter into this Agreement and the performance of the respective obligations hereunder do not violate any other agreement to which you are a party.
1. Contact the Consumer in a timely fashion;
2. 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 Lead Storm under this Agreement;
3. To not pass through to the Consumer the payments you made to Lead Storm to obtain the Lead under this Agreement;
4. To offer your highest level of service to the Consumer.
5. 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);
6. 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 user 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 Lead Storm for all Claims arising out of or related to such breach in accordance and (ii) Lead Storm may immediately terminate this Agreement without notice or a right to cure.
7. 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 Lead Storm via e-mail at firstname.lastname@example.org within ten (10) business days of your receipt of the request.
REGISTERING FOR SERVICE
Registration is available to eligible members only. You may only register one time for our service. To register, you must complete a Lead 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 Lead Order is a legally binding contract and is part of these Terms and Conditions, 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 the Company has received your fully executed Lead Order, you affirmatively agree to these terms. Permanent activation will occur only when the Company has received confirmation that your initial 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 payment to clear your bank or credit card company. All terms and conditions of this Agreement apply during this provisional activation period. The Company 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. All leads sold by Lead Storm are non-exclusive and may be sold to multiple users according to filtering criteria established by individual users and the lead data itself.
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 Lead Order, if you decide to buy leads, the price for the leads will be based on the Lead Storm pricing schedule in effect at the time you buy the leads. YOUR PURCHASE IS A BINDING CONTRACT subject to the guarantee, return, refund policies and other terms set forth in these Terms and Conditions and in your initial Lead Order. Your account will be immediately debited for the total initial commitment amount(s) agreed to in your Lead Order. After your Initial Commitment is satisfied as set forth 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 Lead Storm pricing schedule in effect at the time you buy the leads. Lead Block Initial Volume Commitment: By establishing your user account for lead delivery, you are committing yourself to purchase an initial block of leads to be delivered to your user account during the first thirty (30) days of service. Leads will be automatically delivered to your user account each business day according to the filter criteria. Your Lead Order is non-cancelable during the initial thirty (30) day period following your Lead Order date. Your Lead Order fee is non-refundable once your account is activated. Prices subject to change without notice.
FUNDING YOUR ACCOUNT
We offer three (3) methods by which you may fund your account. (1) Credit card: If you use a credit card to fund your account, YOU AGREE TO NOT CHARGE BACK YOUR CARD for any reason. If you are dissatisfied with our services or any Lead or Leads you have purchased using your credit card you must follow the return/refund policy and procedures set forth under this Agreement. In the event you breach this term and you charge back your credit card for all or partial amounts within your account, you will be charged an administrative service fee of one hundred ($100) dollars, which you agree to pay in addition to the amount of the Lead purchase fee due for Leads you have received to the date of the chargeback. Your user account balance will not reflect a deposit made until your credit card company has processed your payment into NR Leads merchant account. This date may differ from the date you actually authorize your payment.
(2) Check or Draft: If you use a check, including a fax 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/refund policy and procedures set forth under these Terms and Conditions. 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 been deposited into our bank, processed and has cleared you bank. This date may differ from the date you send your payment or the date we receive your check.
(3) Bank Wire: Transactions must be completed before 1pm PST to be credited that same business day. In any of the above circumstances, you also agree to pay any collection costs and reasonable attorney fees and court costs should collection action be initiated.
For users that Lead Storm determines meet the Eligibility Criteria, Leads shall be provided pursuant to the parameters defined in your initial Lead Order and according to the filtering criteria you may from time-to-time select. Lead Storm shall endeavor to make Leads available each business day as soon as is reasonably practicable, excluding weekends holidays as defined below. Leads are delivered by email; however, Lead Storm shall have no responsibility for any service or server outages or failure of user's email system or Internet access. Lead Storm defines a " business day" as follows:
1. Each 24 hour period beginning at 12:01 A.M. Eastern Standard Time on Monday through 12:00 midnight Friday shall be considered as one business day.
2. Saturday and Sunday are not considered as business days.
3. The following holidays are not considered business days: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas.
Any Lead downloaded in to the Lead Storm database during a non-business day shall be considered received by Lead Storm on the next business day. Lead Storm defines a "business week "as comprised of five (5) consecutive business days.
LEAD CONTENT AND GUARANTEE
Exclusive Real-Time Leads: This is the most convenient and highest level of service available. Lead costs reflected under this superior level of service are influenced by the filter choices you make. 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 Site 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. Lead Storm employs internal data validation procedures and makes every effort to ensure you receive only valid leads. These efforts may include a 24 hour 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 Lead Storm received the lead, occasionally a Lead may contain information that, though consistent with our validation criteria, is no longer valid. We guarantee each filtered Lead to be a Valid Lead as defined in the "Definitions" section of this Agreement. Leads provided under your Lead Order that are subsequently shown to be Invalid Leads, as defined in prior sections of this Agreement, will be replaced with a Valid Lead. No refunds to your account will be made during your Lead Order period.
Data provided within a Lead is inputted solely by the Consumer and not Lead Storm or anyone affiliated with us. Consumers do not submit their contact information directly to Lead Storm. A Lead may come to Lead Storm 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 Consumer's 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, 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 Lead Storm. As such, WE DO NOT GUARANTEE YOUR RESULTS OR THAT YOU WILL CLOSE ANY BUSINESS WITH OUR LEADS. Since most of our Leads are nonexclusive, the Consumer may have started a process with another company, so this is not a valid reason for a dispute, refund or credit. Similarly, Consumers often will change their mind after they submit a request for contact and thus not be willing to apply for business with you, so this is not a valid reason for a dispute, refund or credit. We recommend contacting the Consumer as soon as you get the Lead so you can be the first to earn their business. Lead Storm reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to review these Terms and Conditions periodically.
Data provided within a Lead is inputted by the Consumer and not Lead Storm . We do not guarantee the age of the data contained in a Lead or that their email address is correct or that their stated home value, requested loan amount, credit quality, or interest rate is exactly correct as these are estimates entered by the Consumer when completing the application. We do not GUARANTEE that the Consumer has not changed their mind or that they have not already refinanced with another user. These leads are discounted to accommodate for such circumstances. As they are older leads and likely previously distributed leads, these situations are likely to occur. How you approach and handle each Lead is up to you and not under the control of Lead Storm. As such, WE DO NOT GUARANTEE YOUR RESULTS OR THAT YOU WILL CLOSE ANY BUSINESS WITH OUR LEADS. Lead Storm reserves the right to monitor your disputes and returns to determine their validity. Lead Storm reserves the right to verify your dispute rationale and, in our sole discretion, determine if your dispute is valid. 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 as set forth infra, 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, Lead Storm reserves the right to terminate your account if abuse of this lead return policy is proven to exist. Lead Storm reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to review these Terms and Conditions periodically.
LEAD RETURN POLICY
Leads Returns: Returning Invalid Leads couldn't be easier. 10% of Leads per order can be returned and credited. Replacement Leads shall be provided up front and added to all orders. No other leads will be provided to you as make good or replacements leads.
Lead Storm reserves the right to change or adjust this policy without prior notice to you. You are therefore encouraged to review these Terms and Conditions periodically.
NO REFUNDS WILL BE ISSUED. NO CREDITS WILL BE PROCESSED OR ISSUED BASED UPON AN E-MAIL REQUEST OR VOICE TELEPHONE MESSAGE. NO EXCEPTIONS. After your Lead Order ends, Credits are offered ONLY in two (2) circumstances:
1. A credit to your account will be given if your account was charged for a delivery of a Lead(s) and through no fault of yours, we cannot deliver those Leads that you have ordered as promised herein.
2. A credit to your account will be given if you were over-billed due to a technical error.
The data form provided to you by Lead Storm is proprietary to Lead Storm 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 Lead Storm, however, without the prior written permission of Lead Storm 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 Lead Storm or Lead Storm 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 Lead Storm or Lead Storm 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. Lead Storm reserves the right to terminate your account immediately and without notice, if it becomes aware and determines, in its sole discretion, that you are violating or have violated any of the foregoing.
ACCOUNT AND PASSWORD
You will be provided a confidential account ID number by Lead Storm and be allowed to choose your own confidential password. YOU ARE THE ONLY ONE AUTHORIZED BY Lead Storm TO USE YOUR ACCOUNT ID 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 Lead Storm 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.
The Company is not responsible for the content available on any other Internet sites linked to the Site. Access to any other Internet sites linked to the Site are at your own risk.
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
THE Lead Storm 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 NONINFRINGEMENT. Lead Storm EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE Lead Storm SERVICE WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY Lead Storm, 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 Lead Storm, Lead Storm, Inc., 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 Lead Storm SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY INFORMATION OBTAINED ON THE Lead Storm 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 Lead Storm RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY WHETHER OR NOT Lead Storm IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE FROM Lead Storm AND ITS AFFILIATES.
LIMITATION OF LIABILITY
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 Lead Storm, 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 Lead Storm, 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.
You shall indemnify, defend and hold harmless the Company, its officers, directors, employees, suppliers, agents, subsidiaries, affiliates, successors and assigns (each an "Indemnitee") from all liabilities, losses, damages, claims and expenses, including reasonable attorneys' fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arises out of or relates to (a) your breach or violation of this Agreement; (b) your use of the Site and any transaction or other activity that arises from or is otherwise related to the Site; (c) any and all claims, demands, legal action or judgments arising out of or relating to any use, modification or enhancement of the products or services you acquire from the Company; and/or (d) your negligence or willful misconduct. In the event you fail to promptly indemnify and defend such claims and/or pay the expenses of such Indemnitee, as provided above, such Indemnitee shall have the right to defend itself, and in that case, you shall reimburse such Indemnitee for all of its reasonable attorney's fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of such Indemnitee's written requests.
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.
COPYRIGHT AND TRADEMARKS
All contents of the Site are proprietary to the Company, its successors and assigns, and/or its suppliers and cannot be used without the written permission of the Company. The Site is also protected as a collective work or compilation under U.S. copyright and other laws and treaties. 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 Site for your personal records to be used as a reference. The Company 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. Lead Storm is registered service marks of.
The Company reserves any rights not expressly granted herein.
OWNERSHIP OF MATERIALS
The Company exclusively owns all worldwide right, title and interest in and to all documentation, software, contents, graphics, designs, data, computer codes, ideas, know-how, "look and feel," compilations, magnetic translations, digital conversions and other materials included within the Site and related to the Site and all modifications and derivative works thereof, and all intellectual property rights related thereto.
TERM OF AGREEMENT AND TERMINATION
THIS AGREEMENT IS NON-CANCELLABLE BY USER This Agreement shall remain in force and effect as long as you hold an account with Lead Storm. This Agreement is automatically renewed each time you access the Site and/or log-in to your account and/or use our services and/or purchase our goods and/or services. You may close your account at any time after the 60th calendar day following your account activation and terminate this Agreement by providing not less than ten (10) days prior written notice sent by traditional postal service mail, courier or facsimile to Lead Storm of your desire to cancel your account. Absent such a voluntary cancellation, this Agreement may be terminated immediately by either party: 1. 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 2. At any time upon written notice (including electronic mail) with or without cause by Lead Storm in the event of a material breach by you of any of the Terms and Conditions set forth herein. 3. 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 noncompliance cannot be remedied or that the cost of remediation or compliance is prohibitive.
Maryland 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 Maryland or to any Federal Court located within the State of Maryland.
INTERPRETATION AND CONSTRUCTION
No provision of this Agreement shall be construed in favor of or against Lead Storm or you by reason of the extent to which any such party or its counsel participated in the drafting thereof. 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 Lead Order, the terms of this Agreement shall control.
Any dispute or claim arising hereunder shall be submitted to binding arbitration in Montgomery County , Maryland , 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 Maryland Code of Civil Procedure, as enacted or hereafter amended, shall apply.
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.
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 Lead Storm. Notwithstanding the foregoing, either You or Lead Storm may assign its rights and obligations under this Agreement without consent and without notice to the other, and both You and Lead Storm 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 Lead Storm 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.
MODIFICATION OF TERMS
Lead Storm reserves the right to modify this Agreement and its policies at any time and without advance notice to you, effective upon making the modified provisions available on the Site. You are responsible for regularly reviewing these documents. Continued use of the Site after any such changes shall constitute your consent to such changes. Lead Storm does not and will not assume any obligation to notify you of any changes to this Agreement.
Your establishing of an account and/or your use of the Site is evidence that you have read and understand this 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.
GUARANTEE ON CREDIT CARD TRANSACTIONS
The undersigned individual unconditionally guaranties ("Guaranty") to Lead Storm, Inc. the timely payment of the debts, liabilities, obligations, covenants, fees, and other charges or amounts due arising out of or relative to (the "Agreement") and relative to any other contract, understanding or agreement between You and Lead Storm, Inc., whether written or oral, whenever and however they may arise (the "Guarantied Obligations"). If Company fails to timely pay or perform any of the Guarantied Obligations, the undersigned will immediately pay or perform such Guarantied Obligation. Guarantor waives the right to be notified of any modification or amendment of the Agreement. This is a guaranty of payment and performance and is not a guaranty of collection.
Upon the occurrence of an insolvency proceeding under Title 11 of the United States Code or under any similar state law by or against Company, Lead Storm, Inc. may immediately pursue its rights under this Guaranty, even though it may be stayed from accelerating or collecting the Guarantied Obligations from Company. The undersigned's obligations under this Guaranty are independent of those of Company and any another guarantor or endorser relative to the Guarantied Obligations. Lead Storm, Inc .may bring a separate action against the undersigned without first proceeding against Company and without pursuing any other remedy.
This Guaranty shall be interpreted and enforced under the laws of the State of Maryland . The parties irrevocably submit to the jurisdiction of the state and federal courts located in Montgomery County , Maryland for any action or proceeding regarding this Guaranty. If any lawsuit or other action is commenced which arises out of or relates to this Guaranty, or the Guarantied Obligations, the prevailing party shall be entitled to recover from the other party such sums as the court, referee, mediator or arbitrator adjudges to be reasonable attorneys' fees in the action or proceeding (including on appeal there from), in addition to costs and expenses otherwise allowed by law. This Guaranty constitutes the entire agreement between the parties relative to the subject matter hereof and may not be modified except by an agreement in writing executed by the party hereto against whom the modification is sought to be enforced. This Guaranty supersedes all prior agreements between the parties with regard to the subject matter hereto.
PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS
If you have additional questions regarding this Terms of Service, Lead Storm, Inc. may be contacted as follows:
Lead Storm, Inc.
267 Kentlands Blvd. #1080
Gaithersburg, Maryland 20878