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This Agreement together with your Broker Order sets forth the Standard Terms
and Conditions that apply to your use of LeadsAuctionHouse ®
services. The Broker Order you completed 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.
TERMS AND CONDITIONS FOR USE OF LeadsAuctionHouse
SERVICES, RECEIPT OF CONSUMER CONTACT INFORMATION AND FOR USE OF THE LeadsAuctionHouse.com
WEBSITE.
BY VISITING OR USING THE LeadsAuctionHouse WEBSITE, OR ANY
PAGE OF THE www.LeadsAuctionHouse.com WEBSITE, YOU
ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE , AND THAT SUCH AGREEMENT
CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND LeadsAuctionHouse
. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF
USE, PLEASE DO NOT VISIT OR USE THE LeadsAuctionHouse WEBSITE OR
ANY PAGE OF THE LeadsAuctionHouse WEBSITE.
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 Broker Order;
- Broker 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 LeadsAuctionHouse
website, as well as anyone you authorize to visit and use the LeadsAuctionHouse website on your behalf;
- LeadsAuctionHouse,
us we, and our and ours refer to LeadsAuctionHouse and its parent company, whose products or services are offered on the LeadsAuctionHouse website;
- LeadsAuctionHouse.com
website refers to the website located at www.LeadsAuctionHouse.com and related pages, or any
linked pages and websites hosted or sponsored by LeadsAuctionHouse
.
- 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 generated via lawful means either through
traditional media, internet or telemarketing campaigns whether conducted
by or on behalf of LeadsAuctionHouse, or purchased from wholesale vendors and
thereafter provided to Broker and that contains information;
- Duplicate Lead
shall mean a Lead that has been received by Broker from LeadsAuctionHouse 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, and one valid
contact phone number; (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 LeadsAuctionHouse
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; (ii) the Lead is a Duplicate Lead,
(iii) the Lead is for financing raw land, a mobile home or commercial
property;
- Overstock Lot®
leads are leads that is designated by LeadsAuctionHouse
specifically as an Overstock Lot Lead and are available for distribution
and sale; have been in LeadsAuctionHouse inventory between
one (1) business day and twelve (12) business weeks; that may have been
previously routed to another Broker(s); which may be made available to
Broker at a discounted rate and are leads that are manually chosen by
Broker from the inventory listing found on our website www.LeadsAuctionHouse.com after log-in by Broker
into their user account.
Privacy Policy
LeadsAuctionHouse is committed to
maintaining the privacy and security of any and all information that you
provide to LeadsAuctionHouse through the LeadsAuctionHouse
.com website.
Please note that privacy policies of LeadsAuctionHouse's
affiliates or third parties may apply to information you provide on the
LeadsAuctionHouse.com website. In addition, websites linked to the LeadsAuctionHouse.com website may
have separate privacy policies.
Use And Limitations Of The LeadsAuctionHouse.com
website
Except where we specify otherwise, LeadsAuctionHouse offers
you access to the LeadsAuctionHouse.com website solely for your personal and
non-commercial uses. You promise that you will not use the LeadsAuctionHouse.com website,
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 website, transfer or sell any
information, software, lists of users, databases or other lists, products or
services provided through or obtained from the LeadsAuctionHouse.com website. 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 LeadsAuctionHouse.com website in any manner that could
damage, disable, overburden, or impair the LeadsAuctionHouse.com website or interfere with
any other party's use and enjoyment of the LeadsAuctionHouse.com website. You may not
obtain or attempt to obtain any materials or information through any means not
intentionally made available or provided for through the LeadsAuctionHouse.com website.
If and when requested by LeadsAuctionHouse.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 LeadsAuctionHouse.com, you agree
that you will not access or attempt to access password protected, secure or
non-public areas of the LeadsAuctionHouse.com website.
You agree that LeadsAuctionHouse may in its sole discretion
and at any time terminate your access to and use of the LeadsAuctionHouse.com website, or
any part thereof, with or without notice.
The LeadsAuctionHouse.com website contains content and information originated by LeadsAuctionHouse ,
affiliates of LeadsAuctionHouse or unaffiliated third parties. LeadsAuctionHouse makes available such
content and information through the LeadsAuctionHouse.com website as a public service, for
the sole purpose of aiding you, the individual consumer. LeadsAuctionHouse, 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 LeadsAuctionHouse.com website-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 LeadsAuctionHouse determination and acceptance.
E-Signatures and Communications
All electronic communications, including any electronic signatures or
identifiers of LeadsAuctionHouse, are being transmitted solely
for informational purposes. By making an electronic communication, LeadsAuctionHouse 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.
USER ELIGIBILITY
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. LeadsAuctionHouse, 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.
User Conduct and Broker Best Practices
Your acceptance of these terms is your warrant and representation to us that
your conduct in performing your obligations under this Agreement will conform
to all of the Terms of Service set forth herein and all applicable,
international and/or federal, state and local laws, rules and regulations
including, without limitation, the provisions of the published LeadsAuctionHouse Privacy Policy; All privacy laws and anti-spam laws
(including, but not limited to, the Graham-Leach-Bliley Act, the Do-Not-Call
Implementation Act of 2003 and the Telephone Consumer Protection Act of 1991),
laws regarding email marketing (including, but not limited to, the CAN-SPAM act
of 2003), and the Fair Credit Reporting Act.
If, after you contact a Lead, and the consumer requests to be removed from
any further contact from you and/or LeadsAuctionHouse, you agree
to comply with this request for your own records AND you agree to forward that
consumers request to LeadsAuctionHouse via e-mail at E-mail Form 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 LeadsAuctionHouse under this Agreement;
- To not pass through to the
Consumer the payments you made to LeadsAuctionHouse 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 LeadsAuctionHouse
for all Claims arising out of or related to such breach in accordance and
(ii) LeadsAuctionHouse 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 LeadsAuctionHouse
via e-mail at E-mail Form
within five(5) business days of your receipt of the request
REGISTERING FOR SERVICE BROKER ORDER
Registration is available to eligible members only. You may only register
one time for our service. To register, you must complete a Broker Order wherein
you provide your business contact information and billing information.
The Broker 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 LeadsAuctionHouse
has received your fully executed Broker Order, you affirmatively agree to these
terms. Permanent activation will occur only when LeadsAuctionHouse has received
confirmation that your 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 Terms of Service
agreement apply during this provisional activation period. LeadsAuctionHouse
reserves the right to deactivate your account at any time during this
provisional activation period without prior notice to you.
BUYING LEADS
You may only purchase leads once your account has been activated.
PAYMENT METHODS
We offer three methods by which you may pay for leads.
(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 these Terms of Service. 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 LeadsAuctionHouse, Inc.'s 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 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 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. ALL CHECKS MUST BE ACCOMPANIED BY A CLEAR ENLARGED
COPY OF A VALID DRIVERS LICENSE FOR THE SIGNER OF THE CHECK.
(3) PayPal: If
you use PayPal, payments are to be made to LeadsAuctionHouse's PayPal vendor account.
YOU AGREE TO NOT
REQUEST A CHARGE BACK AGAINST THE CREDIT CARD used to fund the PAYPAL payment
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 these Terms of Service. 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 PayPal has processed your payment into LeadsAuctionHouse, Inc.'s PayPal account. This date may differ from the date you
actually authorize your payment.
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.
LEAD DELIVERY
For Brokers that LeadsAuctionHouse determines meet the
Eligibility Criteria and funding requirements, Leads shall be provided pursuant
to the parameters defined in Your initial Broker Order
and according to the filtering criteria you may from time-to-time select. LeadsAuctionHouse shall endeavor to make Leads available each business
day at approximately 6:00 a.m. Pacific Time or as soon thereafter as is
reasonably practicable, excluding weekends holidays as defined below. Broker
may choose to have Leads provided by email; however, LeadsAuctionHouse shall have no responsibility for any service or
server outages or failure of Broker's email system, or Internet
access.
LeadsAuctionHouse 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, Christmas, President's Day and Veteran's
Day.
A Fresh or 1-day old Lead is defined as a lead received by LeadsAuctionHouse that has completed and passed our lead validation
process and is made available for distribution on the next business day
following the validation process. Any lead downloaded in to the LeadsAuctionHouse database during a non-business day shall be
considered received by LeadsAuctionHouse on the next business
day. For example, a lead received by LeadsAuctionHouse on a
Monday and ready for distribution on that same Monday will be considered
Fresh or 1-day old when distributed on Tuesday (the next business day).
Conversely, a lead received by LeadsAuctionHouse on a Friday and
ready for distribution on that same Friday will be considered Fresh or 1-day
old when distributed on Monday (the next business day). And finally, a lead
received by LeadsAuctionHouse on Saturday or Sunday and ready
for distribution on Monday will be considered 1-day old when distributed on
Monday (the next business day).
LeadsAuctionHouse defines a
business week as comprised of five (5) consecutive business days.
LEAD CONTENT AND GUARANTEE
Leads are procured from varying commercial resources. LeadsAuctionHouse 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 LeadsAuctionHouse received the lead,
occasionally a lead may contain information that, though consistent with our
validation criteria, is no longer valid.
Data provided within a lead is inputted solely by the consumer and not LeadsAuctionHouse or anyone affiliated with us. Consumers do not
submit their contact information directly to LeadsAuctionHouse.
A lead may come to LeadsAuctionHouse 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, 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 LeadsAuctionHouse.
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, 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 a loan with you, so this is not a valid reason for a dispute, refund
or credit. We recommend contacting the customer as soon as you get the lead so
you can be the first to earn their business.
LeadsAuctionHouse
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.
LEAD RETURN POLICY:
Please see our Return Policy document.
CONFIDENTIAL INFORMATION
The data form provided to you by LeadsAuctionHouse is
proprietary to LeadsAuctionHouse 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 LeadsAuctionHouse,
however, without the prior written permission of LeadsAuctionHouse
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.
USER'S RESPONSIBILITIES
You agree that you will not use LeadsAuctionHouse or LeadsAuctionHouse 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 LeadsAuctionHouse or LeadsAuctionHouse 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. LeadsAuctionHouse 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.
ACCOUNT AND PASSWORD
You will be provided a confidential account ID by LeadsAuctionHouse
and be allowed to choose your own confidential password. YOU ARE THE ONLY ONE
AUTHORIZED BY LeadsAuctionHouse 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 LeadsAuctionHouse 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.
LINKS
Some Links on the LeadsAuctionHouse website may let you leave
the LeadsAuctionHouse website. You understand the linked sites
are not under the control of LeadsAuctionHouse and LeadsAuctionHouse 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. LeadsAuctionHouse
is not responsible for web casting or any other form of transmission received
from any linked site. LeadsAuctionHouse
is providing these links to you only as a convenience, and the inclusion of any
link does not imply endorsement by LeadsAuctionHouse 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 LeadsAuctionHouse 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. LeadsAuctionHouse EXPRESSLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY THAT THE LeadsAuctionHouse SERVICE
WILL BE ERROR-FREE, TIMELY, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN
INFORMATION GIVEN BY LeadsAuctionHouse, 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 LeadsAuctionHouse,
LeadsAuctionHouse, 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 LeadsAuctionHouse SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON
ANY INFORMATION OBTAINED ON THE LeadsAuctionHouse 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 LeadsAuctionHouse RECORDS, PROGRAMS OR
SERVICES. THE SUBSCRIBER HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL APPLY
WHETHER OR NOT LeadsAuctionHouse IS GIVEN NOTICE OF THE
POSSIBILITY OF SUCH DAMAGES AND THAT THIS PROVISION WILL APPLY TO ALL CONTENT,
MERCHANDISE OR SERVICES AVAILABLE FROM LeadsAuctionHouse 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 LeadsAuctionHouse,
Inc., 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 LeadsAuctionHouse, LeadsAuctionHouse, Inc., 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.
FORCE MAJEURE.
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 LeadsAuctionHouse website are proprietary
to LeadsAuctionHouse, Inc. 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 website for your personal records to be used as a reference. LeadsAuctionHouse,
Inc. 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 website. LeadsAuctionHouse, Inc. reserves any rights
not expressly granted herein.
TERM OF AGREEMENT AND TERMINATION
THIS AGREEMENT IS NON-CANCELLABLE BY BROKER DURING THE FIRST SIXTY
(60) DAYS FOLLOWING ACTIVATION.
This Agreement shall remain in force and effect as long as you hold an
account with LeadsAuctionHouse. This Agreement is automatically
renewed each time you access the LeadsAuctionHouse website
and/or log-in to your account and/or use our 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 LeadsAuctionHouse 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 LeadsAuctionHouse in the event of a material
breach by you of any of the Terms of Service 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 non-compliance
cannot be remedied or that the cost of remediation or compliance is
prohibitive.
GOVERNING LAW
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 LeadsAuctionHouse 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 Broker Order, the terms of
this Agreement shall control.
ARBITRATION
Any dispute or claim arising hereunder shall be submitted to binding
arbitration in Los Angeles County, 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.
SEVERABILITY
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.
SURVIVABILITY
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.
INDEMNIFICATION
You agree to defend, indemnify and hold harmless LeadsAuctionHouse
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 LeadsAuctionHouse.
HEADINGS
Headings are for reference purposes only and in no way define, limit,
construe or describe the scope or extent of such action.
ASSIGNMENT
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 LeadsAuctionHouse. Notwithstanding
the foregoing, either You or LeadsAuctionHouse may assign its
rights and obligations under this Agreement without consent and without notice
to the other, and both You and LeadsAuctionHouse 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 LeadsAuctionHouse and their respective successors and assigns.
ENTIRE AGREEMENT
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
LeadsAuctionHouse 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 LeadsAuctionHouse website. You are responsible
for regularly reviewing these documents. Continued use of the LeadsAuctionHouse website after any such changes shall constitute your
consent to such changes. LeadsAuctionHouse
does not and will not assume any obligation to notify you of any changes to
this Terms of Service Agreement.
INDEPENDENT COUNSEL.
You're establishing of an account and/or your use of the LeadsAuctionHouse
website 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.
Last updated February
1st, 2011
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