This agreement (hereinafter, the “Agreement”) between LeadWarmer, Inc. (hereinafter, “LeadWarmer”, “us” or “we”) and you sets forth the terms and conditions which govern your use of the LeadWarmer website (hereinafter, the “Site”) and/or the services (hereinafter, the “Services”) thereon which are provided by LeadWarmer.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE AND/OR SERVICES. BY ACCESSING OR USING THE SITE AND/OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES AND SHOULD IMMEDIATELY CEASE SUCH USE. LEADWARMER MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE SITE OR VIA E-MAIL. YOUR USE OF THE SITE AND/OR SERVICES FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE AND/OR THE SERVICES SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT. IF WE REQUEST, YOU IRREVOCABLY AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
1. Limited License; Use of Services.
LeadWarmer grants to you a limited personal, non-exclusive and non-transferable right and license to access the Site and use the Services thereon.
LeadWarmer Services shall contain, without limitation, e-mail services, marketing services, review and message boards and various other message communication applications.
You must be able to directly verify when and where each contact to whom you intend to send emails to (“Subscriber”) subscribed to receive such emails.
Scraped, Purchased/Rented/Paid, or any other “non permission granted” subscriber lists are not allowed.
Any use of such lists will result in immediate cancellation of your account and no paid fees will be refunded.
You must ensure that all Subscribers have fully “opted-in” and consented to receive e-mails from you and, therefore, have specifically acknowledged that you may be sending them e-mail. All account email addresses must be valid.
Full message source size may not exceed 2MB’s after message has been fully constructed. Attachments are limited to one attachment at or below 50kb in size and we reserve the right to limit file types allowed.
Accounts are meant to be used for a single set of subscribers. You are not allowed to continually delete and re-import new contacts into an account. (Example: Signing up for a 25,000 contact plan and trying to send to 100,000 contacts by deleting and importing new contacts repeatedly)
Certain data points including but not limited to EGEO & ERJA data can not be exported from the service.
We continually monitor your sending and Subscriber actions to check for above average bounce, abuse, and/or unsubscribe rates. If any rate becomes abnormal your account may go into manual review. Should your sending activity cause spam reports or sending complications LeadWarmer reserves the right to terminate the account without any refund. LeadWarmer reserves the right to refuse service (sending or any other service) with or without reason.
2. Prohibited Activities.
In connection with your use of the Site and/or the Services, you acknowledge and agree that you will not:
a. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, products or services obtained through the Site or the Services;
b. access the Site or Services by any means other than through the standard industry-accepted or LeadWarmer-provided interfaces;
c. transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another’s right of privacy or publicity;
d. impersonate any person or entity, including without limitation, any LeadWarmer official, employee, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
e. post or transmit any material that contains a virus or corrupted data;
f. delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
g. use of any Site or Service’s communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);
h. post or transmit any unsolicited advertising, promotional materials, “junk mail”, “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise;
i. violate any applicable local, state, national or international law;
j. upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
k. delete or revise any material posted by any other person or entity;
l. manipulate or otherwise display the Site and/or the Services by using framing or similar navigational technology;
m. register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any LeadWarmer product or Service if you are not expressly authorized by such party to do so;
n. attempt to log into your account on more than one device at the same time without the express written permission of LeadWarmer;
o. use an account for more than a single set of contacts by continuously deleting and re-importing new contacts into a recurring account (e.g. signing up for a 25,000 contact plan and attempting to send emails to 100,000 Subscribers by deleting and importing new contacts repeatedly);or
p. use the Site and/or the Services for any purpose that is unlawful or prohibited by these terms and conditions. You may not use the Site or the Services in any manner that could damage, disable, overburden or impair LeadWarmer’s servers or networks, or interfere with any other user’s use and enjoyment of the Site and/or the Services. Furthermore, you may not attempt to gain unauthorized access to any of the Site, Services, accounts, computer systems or networks connected to LeadWarmer through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site or the Services.
In addition to the above, to ensure top deliverability we have very strict rules on the content and sending of emails from our service. The following types of emails and/or industries are not allowed (with no exceptions) for use with our service:
Paid lists (of any form);
Rented lists (of any form);
List brokers (of any form);
Sending email without explicit permission;
Sending email advertisements for multiple companies all to the same list (sometimes known as “dedicated email ads” or “solo email ads”);
Pornography, sexually explicit emails;
Illegal substances, illegal goods of any form;
Pills, online drug purchases;
eLoans, loan offers, pay day advances;
Day trading tips, forex, etc.; and
Get rich quick schemes;
Work at home;
Multi-Level-Marketing & Pyramids;
3. Billing and Renewal Transactions and Policies.
Certain products or Services may be offered for sale on the Site. In the event you wish to purchase or to subscribe to any of these products or Services, you will be asked by LeadWarmer or an authorized third party to supply certain information, including without limitation, your full name, address, telephone number and credit card information. You agree to provide LeadWarmer or such third party with the foregoing information as well as any other mandatory information that is accurate, complete and current, and to comply with the terms and conditions of any agreement that you may enter into governing your purchase of the product or Service. You shall be responsible for all charges incurred through your account as well as for paying any applicable taxes.
Some Services offered by LeadWarmer are subscription-based services. If you open a subscription-based account with any of LeadWarmer’s Site, you hereby agree to pay all charges to your account, including any applicable taxes, in accordance with billing terms in effect at the time the fee or charge becomes payable. Should you elect to terminate any subscription-based services, you will remain liable for all charges accrued up to the termination date, including full recurring charges for the recurring period during which you discontinued service. LeadWarmer reserves the right to change the amount of, or basis for determining, any fees or charges for Services we provide, and to institute new fees, charges or terms effective upon notice to users. However, we will not change the charges for current users. We reserve the right to terminate any account at any time for any reason.
4. Accounts, Passwords and Security.
If any of the Site or Services require you to open an account, you must complete the registration process by providing LeadWarmer with current, complete and accurate information, as prompted by the applicable registration form. You acknowledge that by providing any information to LeadWarmer which is untrue, inaccurate, not current or incomplete, LeadWarmer reserves the right to terminate this Agreement and your continued access and use of the Site and/or the Services.
As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify LeadWarmer immediately of any unauthorized use of your account or any other breach of security. LeadWarmer will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by LeadWarmer or another party due to someone else using your account or password.
Should you elect to use a Service that involves sending correspondence to third parties, you must be able to directly verify when and where each contact subscribed to the Service. You must ensure that all third parties you sent to have fully “opted-in”, have consented to receive correspondence from you and have therefore specifically acknowledged that you may send them correspondence. Complaints related to spam are seen as a direct violation of this Agreement and may lead to the immediate suspension or termination of your services. Subscriber-based services are meant to be used for a single set of subscribers and, thus, you are prohibited from deleting and re-importing new subscribers on a continuous basis. Full message source size shall not exceed 2MBs after message has been fully constructed. Attachments are limited to 1 attachment at or below 50KB in size. LeadWarmer reserves the right to limit types of files allowed.
5. Disclaimer Regarding Links.
The links on the Site and/or Services may let you leave the particular Site or Service you are accessing in order to access a linked site (the “Linked Site”). LeadWarmer provides these links as a convenience, but we neither control nor endorse these Linked Site, nor has LeadWarmer reviewed or approved the content which appears on the Linked Site. LeadWarmer is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any Linked Site. You acknowledge and agree that LeadWarmer shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the Linked Site.
6. Dealings with Third Parties.
Your participation, correspondence or business dealings with any third party found on or through our Site and Services, regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that LeadWarmer shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.
7. Proprietary Rights.
You acknowledge and agree that the Site and Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and are the sole property of LeadWarmer or its licensors. You further acknowledge and agree that any content contained in advertisements or information presented to you through advertisers concerning LeadWarmer or otherwise is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
By sending or transmitting to us creative suggestions, ideas, notes, concepts, information, or other materials (collectively, ” Submission Materials”) or by posting such Submission Materials on the Site, you hereby grant to us and our designees a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submission Materials in any media now known or hereafter devised, for any purpose whatsoever, commercial or otherwise, without compensation to you, the provider of the Submission Materials. The foregoing license to LeadWarmer shall be fully paid-up and royalty free. In addition, under no circumstances shall LeadWarmer have any obligation whatsoever to pay a fee to any subscriber or user in connection with the Submission Materials upon the occurrence of a transfer of all or any portion of LeadWarmer business through a merger, sale or transfer of all or substantially all of the assets of LeadWarmer, nor shall the sale of advertising on any of the Site give rise to any obligation to pay a fee to Subscribers.
None of the Submission Materials disclosed or posted via message boards, chats or other public forums shall be subject to any obligation, whether of confidentiality, attribution, or otherwise, on LeadWarmer’s part and we shall not be liable for any use or disclosure of any such Submission Materials.
8. Copyright Policy.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted by LeadWarmer infringe your copyright, you, or your agent may send to LeadWarmer a notice requesting that the material be removed or access to it be blocked. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon LeadWarmer actual knowledge of facts or circumstances from which infringing material or acts are evident. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send to LeadWarmer a counter-notice. All notices and counter notices must meet the then current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details.
LeadWarmer’s Copyright Agent for notice of claims of copyright infringement or counter notices can be reached as follows
Designated Agent: John Cummins
Address of Agent: 415 North LaSalle Suite 600, Chicago, IL 60654
We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
9. Disclaimer of Warranties.
THE SITE AND THE SERVICES, AND ANY CONTENT, TOOLS, PRODUCTS OR SERVICES DISPLAYED, ACCESSED OR OBTAINED ON OR THROUGH THE SITE AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LEADWARMER AND ITS AFFILIATES, SUPPLIERS, AND AGENTS DO NOT WARRANT AND EXPRESSLY DISCLAIM THAT: (i) YOUR USE OF THE SITE AND/OR SERVICES AND ACCESS TO AND USE OF ALL OF THE TOOLS AND FEATURES THEREON WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (ii) THAT ANY INFORMATION OBTAINED THEREIN IS ACCURATE, RELIABLE OR COMPLETE, (iii) THAT DEFECTS WILL BE CORRECTED, or (iv) THAT ANY SOFTWARE, SERVICES, SITE OR SERVER(S) ON WHICH THE SERVICES AND SITE ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE AND THE SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED ON OR THROUGH THE SITE AND SERVICES ARE ENTIRELY AT YOUR OWN RISK.
10. Limitation of Liability.
NEITHER LEADWARMER NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICES; (ii) ANY CONTENT CONTAINED ON THE SITE AND/OR THE SERVICES; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE SITE AND/OR THE SERVICES; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE SITE; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE SITE OR THE SERVICES; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT ON THE SITE OR THE SERVICES, or (vii) ANY OTHER MATTER RELATING TO THE SITE AND/OR THE SERVICES. IN NO EVENT SHALL LEADWARMER ‘S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], STATUTORY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING ANY OF THE SERVICES OR THE SITE.
You agree to indemnify, defend, and hold LeadWarmer and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, employees, and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including reasonable attorneys’ fees and disbursements) which arise directly or indirectly out of or from (i) your breach of this Agreement, (ii) any allegation that any materials that you submit to LeadWarmer or post on any forums (e.g., message boards, chat rooms) infringe or otherwise violate the copyright, trade secret, trademark or other intellectual property rights of a third party, and (iii) your access or use of the Site and/or the Services. This Section 16 shall survive in the event this Agreement is terminated for any reason.
12. Jurisdictional Issues.
LeadWarmer makes no representation or warranty that the content and materials on the Site and/or the Services are appropriate for use in locations outside the United States. Those who choose to access the Site or use the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. LeadWarmer reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the Site and/or the Services to any person, geographic area, or jurisdiction we so desire, and to limit the quantities of any such Service or products that we provide.
This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that LeadWarmer, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Site or Services, and remove and discard any content within the Site, at any time and for any reason. You agree that any actions taken under this Section 18 may be effective without prior notice to you. In the event of termination, however, those Sections in this Agreement which provide for continuing obligations on your part shall survive indefinitely.
14. General Information.
This Agreement constitutes the entire agreement and understanding between you and LeadWarmer and governs your use of the Site and the Services, superseding any prior agreements between you and LeadWarmer. This Agreement and the relationship between you and LeadWarmer shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of law provisions. You and LeadWarmer irrevocably agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the county of Cook, in the State of Illinois, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. The failure of LeadWarmer 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 unlawful, void or for any reason unenforceable, then that provision shall be deemed severed herefrom and shall not affect the validity and enforceability of any remaining provisions. The section titles in this Agreement are for convenience purposes only and have no legal or contractual effect. This Agreement is not assignable, transferable or sub-licensable by you except with our prior written consent. However, we may assign this Agreement to any third party whom we choose without your consent. No waiver by LeadWarmer of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default.