This Usage Agreement (this "Agreement") is by and between iLeads.com, LLC., a California corporation/Leads Direct Network ("iLeads") and the individual or organization accepting this Agreement and creating an account hereby with iLeads ("User", “You”). In consideration of the mutual promises and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the following.
A. iLeads sells a Marketing Program (“Program” or “Marketing” or “Marketing Program”) consisting of Internet generated sales leads ("Sales Leads" or “Leads”) to registered and licensed agents/brokers. Leads consist of certain information submitted to one or more of the Websites by consumers who have requested an insurance, mortgage and/or other product quote. A Sales Lead consists of data only and carries no guarantee except as listed in this Agreement. For purposes of this Agreement, the term "Sites" or “Websites” means the website(s) owned by iLeads, its affiliates, partners, and/or vendors (including but not limited to www.mortgageleadsdirect.com, lifeleadsdirect.com, homeownersleadsdirect.com, autoleadsdirect.com, and lead generation Sites).
B. User is an agent/broker licensed and registered in those states to market and sell those products set forth in the User’s Profile and any states or products the User may purchase Marketing/Sales Leads in the future.
C. Client desires to purchase Marketing/Leads from iLeads via Leads Direct websites on the terms and conditions set forth in this Agreement.
D. This Agreement contains our Policies and Procedures and is the final embodiment of all representations or warranties that iLeads makes concerning the Marketing Program/Sale Leads.
1. Supply of Leads by iLeads to User. iLeads will provide Leads to User in the quantity, territory, of the type, and in the manner as select by the User on the Website and in the User’s Profile. Leads will be delivered and paid for in quantities as individually selected by the User on the Website or via Push Delivery as called out in the User’s Profile. Leads will be delivered at the time of payment into the User's online account and via the delivery method selected in the User Profile. Once purchased, Leads can be accessed directly by User in their account. Although iLeads will use commercially reasonable efforts to supply Leads to User via such selected delivery method, for the avoidance of doubt, iLeads is not responsible for Leads not delivered to User's e-mail account or other alternate system for any reason (including, without limitation, due to downtime of any such method/system), and no credits or refunds will be issued for any such Leads that are placed in User's Account but not received by User for whatever reason via any requested alternate delivery method. If User requests that iLeads deliver Leads to User via email or an alternative method, then User represents, warrants, and covenants to iLeads that User has all rights to grant iLeads permission to access system for the limited purpose of delivering Leads to User's account, including User's sharing of any applicable passwords or account keys. While we endeavor to have Leads available in a timely manner and in sufficient quantities, because Leads are harvested and distributed on a daily basis, availability will vary and may not include any Leads that fit the User’s profile.
2. Push Delivery. User understands that all accounts may be automatically enrolled in Push delivery at iLeads discretion or as a condition of use of the site. “Push” delivery consists of automatic purchase and delivery into the User’s account and via the User’s chosen delivery method of leads that fit within the parameters and daily maximum chosen by the User on their User Profile. Push Delivery may be required for the User to access the full capacity of the Website. User specifically authorizes iLeads to charge the credit card, debit card, or credit balance provided within User's Account at the time of Push delivery. User may pause or terminate Push delivery at any time by deactivating their User Account. Note that the User’s account must be active to self-select, request replacements, or purchase Leads in any manner.
3. Pricing User agrees to purchase Leads placed in User's Account and via Push delivery at the prices set forth on the Website at the time of selection and delivery or at the time of Push. Leads are subject to availability, and prices are subject to change at any time prior to delivery at iLeads’ sole discretion.
4. Payment By accepting the Agreement, You and the credit/debit card account holder are authorizing iLeads to debit the Credit or Debit Card as provide or updated in the User Profile or any credit balance your account may have at the time of Lead purchase/delivery/Push. The User further represents and warrants to iLeads that, if User is not the account holder of such card, User has all requisite power and authority to use and incur charges on such credit card on behalf of the account holder. Although under normal circumstances iLeads will only bill User in accordance with the above-described policy, iLeads reserves the right to charge User's credit card for any outstanding Account balance at any time with or without prior notice. If User's credit card is declined for any reason at the time of billing, User authorizes iLeads to process payment on any other credit card stored in User's Account or previously provided by User. User will be responsible for all taxes, fees and other charges that may be assessed against User in connection with payment of fees to iLeads for Leads provided to User hereunder. Except as otherwise expressly set forth in this Agreement, all legal, accounting, overhead and other costs and expenses incurred in connection with Agreement shall be paid by the party incurring such costs or expenses.
5. No Refund As we can only service a limited number of clients, and since reserving a portion of our available lead flow and advertising budget for Your use means we are potentially turning away other clients or sales opportunities, all charges/drafts/payments made on a Leads Direct Websites and in conjunction with this Usage Agreement are NON-REFUNDABLE. You agree to pay us prior to the delivery of any Sales Lead, according to the method you select in the User Profile. Leads will not be delivered unless payment is received in advance and Your account is in good standing. iLeads has a NO CASH OR CREDIT CARD REFUND policy on all charges.
6. No Warranty No Warranty Because this is a Marketing Program consisting of Sales Leads and iLeads cannot control the sales skill level of the User, the current market conditions, nor the interest level or accuracy of the Leads, iLeads provides the Marketing Program/Sales Leads “As Is”, “With All Faults”, and “As Available”. iLeads makes no guarantees or warranties concerning closing ratios, contact ratios, or financial success, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with You. Except as set forth in this Agreement, iLeads makes no representation or warranties either expressed or implied. Any oral or written representations that may have been made to you before acceptance of this Agreement are superseded by the terms of this Agreement.
7. Replacement Policy As you have purchased a Marketing Program consisting of Sales Leads, we cannot and specifically do not guarantee success, but we provide a replacement credit policy. NO CASH, CREDIT TO A CREDIT CARD, OR OTHER MONETARY REFUNDS WILL BE GIVEN. CREDIT WILL BE ISSUED FOR ADDITIONAL LEAD PURCHASE ONLY. ALL CREDIT CARD CHARGES ARE NON-REFUNDABLE. Under no circumstances will any credit be refunded to User. iLeads will replace/credit leads for the following reasons:
We make the following clarifications regarding our replacement credit policy:
Replacement credits are requested through Your account access:
We will verify that Replacement/Credit requests fit within our Replacement Policy and send a confirmation within two business days. All approved replacements will be added as a credit to your account balance at the amount for which they were initially purchase. No Cash or Credit Card refunds will be provided for Replacement Credits. Please note that iLeads.com reserves the right to audit all replacement requests and to limit the overall replacement percentage or value of Credits provided. iLeads may initially approve a replacement and later reconsider and disapprove of the replacement after making a reasonable investigation of the facts and circumstances or audit of your account. You agree to our Policy that any issue with Lead quality will be addressed via Replacement Credits and not via cash refund.
8. User's Responsibilities and Obligations
9. Termination. ILEADS may terminate this Agreement and User's Account for any reason or no reason at any time with or without prior notification to User. User may terminate this Agreement for any reason or no reason upon at least two (2) business days' prior written notice to iLeads. At the time of any such termination, regardless of the reason, therefore.
10. Notification of Certain Matters. User agrees to notify iLeads promptly in writing and no later than forty-eight (48) hours following: (i) any change in the expiration date or status of any of User's credit cards on file with iLeads; (ii) any change in User's contact information, including address, telephone number and e-mail address; (iii) any breach of any of User's representations, warranties and covenants contained herein; and/or (iv) any apparent breach of security, such as loss, theft or unauthorized disclosure or use of User's user name, password or other Account information.
11. Security. iLeads will make reasonable attempts to secure all data on the iLeads Site, however iLeads is not responsible for lack of care by User to secure its own data (for example, sharing of User's user name, password or other Account information, not logging out of User's Account, etc.) or for any breach of security on the Site. For the avoidance of doubt, User is responsible for any access to or use of User's Account or the iLeads Site by User or any person or entity using User's user name, password or other Account information provided by iLeads to User, whether or not such access or use has been authorized by or on behalf of User, and whether or not such person or entity is an employee, User, or representative of User. User acknowledges and agrees that iLeads has the right to deactivate, change and/or delete User's username, and/or password in iLeads’ sole discretion for any reason or no reason. User will maintain appropriate physical, technical and organizational measures to protect each Lead provided to User against accidental loss or unauthorized access, use, disclosure, alteration, or destruction.
12. Proprietary Rights; Scope of Use As between iLeads and User, User acknowledges and agrees that iLeads owns, solely and exclusively, all right, title and interest in and to the Sites, including without limitation all content, code, data, information, graphics, and other intellectual property used in or on the Sites, the look and feel, design and organization of the Sites, and all copyright, trademark, trade name, service mark, patent, trade secret, moral, database and other intellectual property and proprietary rights inherent therein or appurtenant thereto. Subject to the provisions of this Agreement, including, without limitation, User's payments of all applicable fees, iLeads hereby grants to User a limited, non-exclusive, non-assignable, non-transferable license during the term of this Agreement to access, view and print approved materials and information from the Site remotely over the Internet, solely for User's internal business purposes in connection with its use of the services provided under this Agreement and solely using the Account username and password provided to User by iLeads. Any other use of the iLeads Site, User's Account or any content, code, information, data, or other materials contained therein or available through the iLeads Site is strictly prohibited. Any third party's trademarks, logos or other intellectual property that may appear on any Site are the property of their respective owners and may not be used without such third party's written consent. All rights not expressly granted to User hereunder are reserved exclusively to iLeads.
13. Non-Disclosure. The purpose of this paragraph is to prevent the unauthorized disclosure or use of “Confidential Information”. As used in this Agreement, Confidential Information shall mean a Lead or information not known by actual or potential competitors of iLeads and which is generally unavailable to the public. iLeads confidential Information shall include but is not limited to trade secrets, developments, designs, inventions, processes, techniques, iLeads’ suppliers and vendors and lead generation methods. Lead confidential Information shall include but is not limited to contact, financial, health and other personal data. You shall not, publish or otherwise disclose to others, for their benefit, or to the detriment of iLeads or the Lead, any of the Confidential Information. You shall take all necessary action to protect the confidentiality of the Confidential Information.
14. Dispute Resolution. User and iLeads agree, that any controversy arising out of this Agreement and involving a claim of more than $5,000, exclusive of costs or attorney's fees, shall be settled by binding arbitration at Irvine, California, in accordance with the rules of the American Arbitration Association, and any judgment entered upon the arbitrator’s award may be entered and enforced by any court of competent jurisdiction in Orange County, California. The arbitration shall be conducted by one arbitrator agreed to by each party within thirty (30) days following notice by one party that it desires that the matter be arbitrated. If the parties are unable to agree upon an arbitrator, then the Irvine Office of the American Arbitration Association shall select one arbitrator. The parties agree that the arbitrator must be a retired judge who served as a state or federal judge for more than five (5) years and has experience in business law matters. The cost of the arbitration shall initially be shared equally. As part of the award, the arbitrator shall award the prevailing party its cost of arbitration and that party’s actual attorney’s fees and costs. Discovery shall be available under AAA's rules. Expressly excluded from this section are actions by iLeads to recover liquidated damages under this Agreement or any action seeking injunctive relief arising out of User’s misappropriation of iLeads’ trade secrets or Confidential Information. If any action or proceeding arising out of this Agreement, the prevailing party shall be entitled to its actual attorneys' fees and costs as part of the judgment or award.
15. Disclaimer. USER ACKNOWLEDGES THAT ALL SERVICES PROVIDED BY ILEADS HEREUNDER ARE PROVIDED "AS IS" AND "WHERE IS" WITHOUT ANY WARRANTY WHATSOEVER AND THAT USER'S USE OF SUCH SERVICES IS AT USER'S OWN RISK. NEITHER ILEADS NOR ANY OF ILEADS'S AFFILIATES, LICENSORS OR SUPPLIERS MAKES, AND USER IS NOT RECEIVING, ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. ILEADS AND ITS AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, TITLE AND/OR NON-INFRINGEMENT. ILEADS IS NOT INVOLVED IN ANY TRANSACTION BETWEEN USER AND ANY LEAD. AS A RESULT, ILEADS HAS NO CONTROL OVER THE INTEGRITY, QUALITY, SAFETY OR LEGALITY OF ANY LEAD OR THE TRUTH OR ACCURACY THEREOF. BECAUSE USER AUTHENTICATION ON THE INTERNET IS DIFFICULT, ILEADS CANNOT AND DOES NOT CONFIRM THAT ANY LEAD IS WHO SUCH LEAD CLAIMS TO BE. IN THE EVENT USER HAS A DISPUTE WITH ANY LEAD, USER RELEASES ILEADS AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, USERS, SUPPLIERS AND AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL, DIRECT AND INDIRECT OR OTHERWISE) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH DISPUTE. USER IS SOLELY RESPONSIBLE FOR ITS RELATIONSHIPS WITH ANY LEAD AND FOR SEEKING ANY REMEDIES AND REDRESS DIRECTLY FROM ANY LEAD IN THE EVENT OF ANY SUCH DISPUTE.
16. Limitation of Liability. IN NO EVENT SHALL ILEADS, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, USERS, AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST REVENUE, LOST PROFITS OR ANTICIPATED BUSINESS (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF, THE SITES OR THE SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO DAMAGES ARISING FROM INFORMATION PROVIDED BY, TO OR THROUGH ILEADS, OR ANY OTHER DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ILEADS DOES NOT WARRANT THAT THE SITES WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION. THE AGGREGATE LIABILITY OF ILEADS, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, USERS, AFFILIATES, LICENSORS AND SUPPLIERS TO USER FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF, THE SITES OR THE SERVICES PROVIDED HEREUNDER, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, SHALL NOT EXCEED THE GREATER OF (i) THE AMOUNT RECEIVED BY ILEADS DIRECTLY FROM USER PURSUANT TO THIS AGREEMENT DURING THE CALENDAR MONTH DURING WHICH SUCH CLAIM(S) ACCRUED, OR (ii) $500.00.
18. Notice. All notices, consents, waivers and other communications required or permitted by this Agreement shall be in writing and shall be deemed given to a party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by e-mail, with confirmation of transmission by the transmitting equipment and, if iLeads is the intended recipient, delivery of a copy of any such notice or other communication to iLeads by certified mail, return receipt requested; or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested. iLeads is authorized to send any notices to User hereunder to the mailing address, facsimile number and/or e-mail address associated with User's Account, as such information may be updated by User from time to time. User is authorized to send any notices to iLeads hereunder to the following mailing address or e-mail address:
567 San Nicolas Drive, Suite 180
Newport Beach, CA 92660E-mail Address:
19. No Assignment. User may not assign, sublicense, or transfer this Agreement or any of User's rights or obligations hereunder to any third party, and any attempted assignment, sublicense or transfer is hereby null and void.
20. Amendment. iLeads may amend this Agreement from time to time by providing User with ten (10) days' prior written notice of such amendment. Any use by User of the iLeads Sites or acceptance of Leads under this Agreement as so amended after the expiration of such notice period shall be deemed to constitute agreement by User to the amended Agreement. The then-current version of this Agreement is always available for User's review.
22. No Joint Venture. This Agreement creates no partnership, joint venture, association, agency, franchise, contract of employment or comparable relationship between the parties, and neither party shall have the authority to bind the other party for any purpose not expressly set forth herein.
23. Governing Law and Venue. This Agreement will be governed by, construed under, and enforced in accordance with the laws of the State of California, without regard to its conflict of laws rules. Any lawsuit or action brought by the parties hereto shall be filed and adjudicated in the state and federal courts located in Orange County, California, which shall be the exclusive forum for any such dispute.
24. No Waiver; Severability; Limitations Period. iLeads’ failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to consider the parties' intentions as hereby reflected in the remaining provisions of this Agreement, and such other unaffected provisions shall remain in full force and effect. User agrees that any claim or cause of action by User against iLeads arising out of or related to the Sites, payments/charges, User's Account or the Agreement must be filed by User within six (6) months after such claim or cause of action first arose or such claim and/or cause of action shall be barred forever; provided, however, that in the event any statute or law prohibits the revision of the limitations period applicable to such claim or cause of action, such period shall be revised to the shortest period of time allowable by such statute or law.
[End of Agreement]