Website
Terms and Conditions and Lead Purchase Agreement
Thank you for visiting the Aged
Lead Store™ and Next Wave Marketing Strategies websites located at www.agedleadstore.com
and www.nextwavemarketingstrategies.com (collectively, the “Site”). The Site is an Internet property of Next Wave
Marketing Strategies, Inc. (“NWMS,” “we,” “our” or “us”).
The Site provides end-user visitors (“Visitors”)
with: (a) access to certain information relating to the NWMS Offerings (as
defined below), including various e-books and downloadable periodicals, as well
as other text, images, graphics, blog posts and other material made available
by NWMS (collectively, “NWMS Content”); (b) a means to access the searchable
database and associated services made available by NWMS (collectively, “Platform”),
which enables individuals and/or entities (“Purchasers,” and together
with Visitors, “Users”) to: (i) search for consumer data records grouped
by industry/type (collectively “Leads”), as compiled by NWMS from
various third party sources (collectively, “Third-Party Sources”), using
available search criteria/filters; and (ii) where applicable, purchase a
license to utilize such Leads for a period of three (3) months, or such other
period as designated by NWMS from time-to-time (“Lead License Period”);
(c) the ability to sign up to receive the NWMS e-mail newsletter (“Newsletter”); and/or (d) access to NWMS
social media pages/accounts on third party social media websites, such as
Facebook®, Google+®, LinkedIn®, Twitter® and YouTube® (collectively, “Social
Media Pages,” and together with the Site, NWMS Content, Platform, Leads and
Newsletter, the “NWMS Offerings”).
The following Aged Lead Store™
Website Terms and Conditions and Lead Purchase Agreement (“Terms”) are
inclusive of the Aged Lead Store™ Privacy Policy (“ALS Privacy Policy”),
the Next Wave Marketing Strategies’ Privacy Policy (“NWMS Privacy Policy,”
and together with the ALS Privacy Policy, the “Privacy Policy”), the FAQs
and any and all other applicable NWMS operating rules, policies, price
schedules and other supplemental terms and conditions or documents that may be
published from time to time, which are expressly incorporated herein by
reference (collectively, the “Agreement”). By using and/or accessing the NWMS Offerings,
Users agree to comply with and be bound by the terms of the Agreement, in their
entirety. PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF A USER DOES NOT AGREE WITH THE TERMS OF
THE AGREEMENT IN THEIR ENTIRETY, THAT USER IS NOT AUTHORIZED TO USE THE NWMS
OFFERINGS IN ANY MANNER OR FORM.
THE
AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY,
RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL
CLAIMS THAT MAY ARISE HEREUNDER AGAINST
NWMS, AS WELL AS ITS PARENT, SUBSIDIARIES, RELATED PARTIES, THIRD-PARTY SOURCES
AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE
EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN
ESSENTIAL BASIS OF THE AGREEMENT.
Facebook® is a registered trademark of
Facebook, Inc. (“Facebook”). Google+®
and YouTube® are registered trademarks of Google, Inc. (“Google”). LinkedIn®
is a registered trademark of LinkedIn Corporation (“LinkedIn”). Twitter® is a registered
trademark of Twitter, Inc. (“Twitter”).
Please be advised that NWMS is not in
any way affiliated with Facebook, Google, LinkedIn or Twitter,
nor are the Site Offerings endorsed, administered or sponsored by any of
the foregoing entities.
1. Scope; Modification
of Agreement. The Agreement constitutes the entire and only
agreement between Users and NWMS with respect to Users’ use of the NWMS Offerings, and
supersedes all prior or contemporaneous agreements, representations, warranties
and/or understandings with respect to same.
We may amend the Agreement from time to time in our sole discretion,
without specific notice to our Users; provided,
however, that: (a) any amendment or modification to the arbitration
provisions, prohibition on class action provisions or any other provisions
applicable to dispute resolution (collectively, “Dispute Resolution
Provisions”) shall not apply to any disputes incurred prior to the
applicable amendment or modification; and (b) any amendment or modification to
pricing and/or billing provisions (“Billing Provisions”) shall not apply
to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the
Site, and Users should review the Agreement prior to using any NWMS Offerings. By a User’s continued use of any of the NWMS Offerings, that User
hereby agrees to comply with all of the terms and conditions contained within
the Agreement effective at that time (other than with respect to disputes
arising prior to the amendment or modification of the Dispute Resolution
Provisions, or charges incurred prior to the amendment or modification of the
Billing Provisions, which shall be governed by the Dispute Resolution
Provisions and/or Billing Provisions then in effect at the time of the subject
dispute or incurred charges, as applicable).
2. Requirements; Necessary Equipment. The NWMS Offerings are available only to valid
legal entities and/or individuals who can enter into
legally binding contracts under applicable law. The NWMS Offerings are not
intended for use by non-valid legal entities and/or individuals under eighteen
(18) years of age (or the applicable age of majority, if greater than eighteen
(18) years of age in their
respective jurisdictions).
If a User is not a valid legal entity,
if that User is under eighteen (18) years of age (or the applicable age of
majority, if greater than eighteen (18) years of age in her/his jurisdiction) and/or if that User is unable to enter into legally binding contracts under applicable law, that
User does not have permission to use and/or access the NWMS Offerings. Users shall be responsible, at
all times, for ensuring that they have an Internet connection and/or
other equipment necessary to access and use the NWMS Offerings.
3. Registration; Account Rejection and/or
Termination. In order
to utilize
certain of the NWMS Offerings, including Users that wish to purchase Leads
and/or sign up for the Newsletter, Users may be required to submit a
registration form (each, a “Form”).
The information that Users must supply on the applicable Form may
include, without limitation: (a) the User’s full name; (b) the User’s username
and password; (c) the User’s e-mail address; (d) the User’s company’s name; (e)
the User’s full address; (f) the User’s credit card information, including
billing address (where purchasing a license to certain Leads with a credit card
account); (g) the User’s mobile
telephone number and mobile carrier; (h) the User’s alternate telephone number;
(i) how the User located the Site; (j) what Lead types the User is interested
in; and/or (k) any other information requested by NWMS on the Form
(collectively, “Registration Data”).
Each User agrees to provide true, accurate, current
and complete Registration Data, as necessary, in order to maintain it in up to
date and accurate fashion.
NWMS may reject a User’s Form,
reject a User’s attempted registration and/or terminate a User’s NWMS
Offerings account (“Account”) at any time and for any reason, in its
sole discretion. Such reasons may
include, without limitation, where: (i) NWMS believes that such User is in any
way in breach of the Agreement; (ii) NWMS believes that such User is engaged in
any improper conduct in connection with the NWMS Offerings; and/or (ii) NWMS
believes that such User is, at any time, conducting any unauthorized commercial
activity by and through the NWMS Offerings.
As part of the registration
process, Users will be provided with, or must select, a username and/or
password. If the username/password that a User
requests is not available, that User will be asked to supply another
username. If NWMS provides a User with a
username/password, that User can change that username and/or password, or the
one that the User selected during registration, at any time through that User’s
Account settings. Each User agrees to
notify NWMS of any known or suspected unauthorized use(s) of its Account, or
any known or suspected breach of security, including loss, theft, or
unauthorized disclosure of its username/password. Each User shall be responsible for maintaining the confidentiality of its
username/password and Account. Each User agrees to accept responsibility
for all activities that occur through use of its username/password and Account,
including any charges incurred therethrough.
4. The NWMS Offerings.
(a) Compliance with Applicable Law. By accessing and using the NWMS Offerings,
each User represents and warrants that its use of any and all Leads, its User
Content (as defined below) and its use of any and all other NWMS Offerings will
be in strict compliance with all applicable NWMS guidelines, as well as all applicable
local, state, national, federal and international laws, rules and regulations including,
but not limited to, Applicable Privacy Laws (as defined below), the Gramm-Leach
Bliley Act
of 1999 (15 U.S.C. §§ 6801 et seq.) and the FTC’s Safeguards Rule (16 CFR Part
314), the
Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), California Business & Professions Code
§17529 et seq., Nevada’s privacy law, as amended by Senate Bill 220 (the “Nevada
Privacy Law”), the Telephone Consumer Protection Act (47 USC § 227),
and its implementing regulations adopted by the Federal Communications
Commission (47 CFR § 64.1200) (the “TCPA”), the Fair Debt Collection
Practices Act, the Federal Communications Act, the Amended Telemarketing Sale
Rule (“ATSR”), 16 CFR 310 et seq., and laws governing the National
Do-Not-Call Registry, the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”), the Health Information Technology for Economic and
Clinical Health Act (the “HITECH Act”), the HIPAA Privacy Rule, the
HIPAA Security Rule, the Canadian Anti-SPAM Legislation (“CASL”), the EU
General Data Protection Regulation (“GDPR”), and all rules and regulations
promulgated under any of the foregoing (collectively, “Applicable Law”). For purposes of the Agreement, “Applicable
Privacy Laws” means any and all statutes, regulations, regulatory
guidelines and judicial or administrative holdings or interpretations related
to consumer privacy including, but not limited to, the California Consumer
Privacy Act, Cal. Civ. Code § § 1798.100 et seq. (“CCPA”), the
California Privacy Rights Act (“CPRA”), the Colorado Privacy Act (“CPA”),
the Connecticut Data Privacy Act (“CDPA”), the Utah Consumer Privacy Act
(“UCPA”) and the Virginia Consumer Data Protection Act (“VCDPA”).
(b) Disclaimers. Each User acknowledges
that NWMS
utilizes multiple Third-Party Sources and collection methods in its Lead compilation
processes. The Third-Party Sources are
solely responsible for the content, accuracy, completeness, appropriateness
and/or validity of the Leads, and the legality associated with their collection
and dissemination. NWMS does not
represent or warrant that the Leads and/or other information made available by
and through the Platform and/or other NWMS Offerings is accurate, complete or appropriate, or that such Leads were collected
in compliance with Applicable Law. NWMS
makes no representation or warranty that the Leads are collected in a manner
that satisfies any applicable legal requirements for use in any specific manner,
including in connection with Applicable Privacy Laws, or are fit for any
particular purpose (including for re-sale), and NWMS shall not be liable under
any circumstances for any claim associated with same. As a
result, NWMS does not make any claim, representation
or assertion that User, or any third party, may market any products and/or
services to the Leads without first separately obtaining prior express written
consent from each such consumer that comprises the subject Lead (each, a “Consumer”),
as required under Applicable Privacy Laws.
Each User further expressly acknowledges and agrees that NWMS does not
make any claim, representation or assertion that User,
or any third party, may re-sell any Leads provided by and through the Platform without
first separately obtaining affirmative consent to do so from each such subject Consumer,
as required under Applicable Privacy Laws.
Users
should consult with their own legal counsel before initiating any online or
offline marketing campaign utilizing the Leads. Without limiting the foregoing, each User hereby expressly acknowledges and agrees
that, in the event that any consumer information contained in any Lead provided
by and through the Platform includes telephone numbers, such consumer
information MAY NOT HAVE BEEN collected from consumers who have provided
“prior express written consent” as required under the TCPA, or any consent
required under other applicable state and federal laws including, without
limitation, the Oklahoma Telemarketer Restriction Act, the Florida
Telemarketing Act and Florida Do Not Call Act and Federal Do Not Call List
requirements, the Washington Telemarketing Law HB1497, and/or Do Not Call List
requirements. As a result, NWMS does not
make any claim, representation or assertion that User, or any third party, may:
(i) call any telephone or mobile phone numbers contained within any Lead, without
first scrubbing against the National Do-Not-Call-Registry; and/or (ii) call any
telephone or mobile phone numbers contained within any Lead through the use of
an automatic telephone dialling system, pre-recorded or artificial voice
message, or text message without first separately obtaining prior express
written consent from each Consumer, as required under the TCPA. Each User hereby expressly acknowledges and
agrees that, in the event that any Consumer information contained in any Lead
provided by and through the Platform includes e-mail addresses, such consumer
information MAY NOT HAVE BEEN collected from
consumers who have provided “affirmative consent” as required under CAN-SPAM,
consent required under CASL or any other legally required consent. As a result, NWMS does not make any claim, representation or assertion that User, or any third party,
may send commercial e-mail messages to any e-mail addresses contained within
any Lead, without first separately obtaining affirmative consent from each such
subject Consumer, as required under CAN-SPAM.
(c) Platform/Leads/Lead License Period. Subject to the terms and conditions of the
Agreement, Users shall be permitted to search for Leads by and through the
Platform using various filters/search criteria made available by NWMS. Where a User wishes to purchase a license to
the Leads for the applicable Lead License Period, and upon completing the applicable Form
associated with the license of Leads, the credit card that the User provided on
the Form (where selected as its preferred payment method) will be charged the
applicable fee for the Leads (“Active Credit Card”).
Where you do not wish to pay for Leads via a credit card, you may
contact NWMS with your alternative payment request and, where NWMS approves,
NWMS will send you a purchase order that will enable you to pay by faxed check,
wire transfer, direct bank deposit and/or Western Union (collectively, “Alternative
Payment Method,” and together with the Active Credit Card, the “Payment
Method”). ALL SALES ARE FINAL AND NON-REFUNDABLE.
Users may
only use the Leads that they license by and through the Platform for their own
personal use during the Lead License Period which shall be, unless expressly
provided for otherwise, three (3) months from the date of purchase. Users may not resell, rent, license, transfer
or in any way permit the use of the Leads by any third party. NWMS shall retain all right, title and interest in and to the Leads and all intellectual
property contained therein. NWMS reserves the right, but is not obligated, to
monitor Users’ compliance with the terms of the Agreement which may include
using a combination of control methods including, without limitation,
implantation of seed and/or decoy information/Leads, as applicable. Upon expiration or termination of the Lead
License Period, Users shall immediately discontinue any and
all use of the Leads and permanently delete or return all copies of
licensed Leads except as expressly provided herein. In the
event that a User fails to fully comply with the foregoing obligations, that
User shall pay to NWMS, as liquidated damages and not a penalty, an amount equal
to one-twelfth of the total fees charged under this Agreement for each month of
such User’s noncompliance. Each User shall
certify in writing as to its compliance with its obligations within ten (10)
days of NWMS’s request. Each User agrees
that NWMS may, during any ongoing Lead License Period and for a period of one
(1) year following the termination of the most recent Lead License Period,
audit User for the sole purpose of verifying that such User has complied with
the terms of the Agreement. Each User
will cooperate with NWMS in such audit(s) by providing NWMS with access to records
and personnel as reasonably necessary for NWMS to verify that such User has
complied with the terms of the Agreement.
Any such audit(s): (i) may be performed by NWMS or its third party representatives; (ii) shall occur only during
normal business hours; and (iii) shall, in each instance, be preceded by at
least three (3) business days’ advance written notice. NWMS will be solely responsible for the costs
of such audit(s); provided, however, that
User will pay the reasonable costs of such audit(s) and any applicable charges
if the audit(s) reveal(s) that such User has not complied with the terms of the
Agreement.
The fees associated with each User’s
purchases will appear on that User’s Payment Method statement through the
identifier AgedLeadStore.com. All prices
displayed on the Platform are quoted
in U.S. Dollars, are payable in U.S. Dollars and are valid and effective only in
the United States. Failure to use the Leads does not constitute a basis for
refusing to pay any of the associated charges.
Subject to the conditions set forth herein, each User agrees to be bound
by the Billing Provisions of NWMS in effect at any given time. Upon reasonable prior written notice to its
Users (with an update to the Agreement and/or e-mail sufficing), NWMS reserves
the right to change its Billing Provisions whenever necessary, in its sole
discretion. Continued use of any NWMS
Offerings and/or purchase of Leads
after receipt of such notice shall constitute consent to any
and all such changes; provided,
however, that any amendment or modification to the Billing Provisions shall
not apply to any charges incurred prior to the applicable amendment or
modification.
NWMS’
authorization to provide and bill for the Leads is obtained by way of the
applicable User’s electronic signature or, where applicable, via physical
signature and/or voice affirmation. Once
an electronic signature is submitted, this electronic order constitutes an electronic
letter of agency. NWMS’ reliance upon a User’s
electronic signature was specifically sanctioned and written into law when the
Uniform Electronic Transactions Act and the Electronic Signatures in Global and
National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically pre-empt all state
laws that recognize only paper and handwritten signatures.
(d) Suppression Lists. From time-to-time, NWMS may deliver to Users
a suppression list containing: (i) e-mail addresses of Consumers contained in
the subject Leads that have expressed that they do not wish to receive
subsequent e-mail marketing; (ii) telephone numbers of Consumers contained in
the subject Leads that have expressed that they do not wish to receive subsequent
telemarketing and/or text message marketing; and (iii) Consumers contained in
the subject Leads that have notified us that they do not want us to continue to
share their data (this includes all data fields contained in the Leads) (collectively,
the “Suppression List(s)”). Each
User agrees that it will: (A) check such Suppression Lists on
a daily basis; and (B) process all unsubscribe requests, no matter the
source, within five (5) days of its receipt of such requests and maintain electronic
records evidencing the date and time of removal of such e-mail address(es)
and/or telephone number(s), as applicable, from the Leads made available to
User hereunder. Each User hereby
expressly agrees not to use the Suppression List(s) for purposes of e-mail
marketing, telemarketing and/or text message marketing or provide the
Suppression List(s) to any third party for said purpose(s).
(e) NWMS Content. Subject to the terms and conditions of the Agreement,
Users that possess the requisite technology shall have the opportunity to view,
download and/or interact with all or some of the NWMS Content made available by
and through the Site and/or other NWMS Offerings. The NWMS Content is compiled, distributed and displayed by NWMS, as well as third-party
content providers (collectively, “Third-Party Providers”). NWMS does not control the NWMS Content provided by
Third-Party Providers that is made available by and through the NWMS Offerings. Such Third-Party Providers are solely responsible
for the accuracy, completeness, appropriateness and/or usefulness of such NWMS
Content. The NWMS Content should not
necessarily be relied upon. NWMS does not represent or
warrant that the NWMS Content and other information posted by and through the NWMS Offerings is
accurate, complete, up-to-date or appropriate. Users understand and agree that NWMS will not be
responsible for, and NWMS undertakes no responsibility to monitor or
otherwise police, NWMS Content provided by Third-Party Providers. Users agree that NWMS shall have no
obligation and incur no liability to such Users in connection with any NWMS
Content. Users may find certain NWMS
Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety
when using the NWMS Content.
(f) User Content. Each User
agrees that it is solely responsible for the marketing material and/or other content, material, communications, feedback, products,
services and/or other information and merchandise that is made available, promoted,
marketed, pitched, published, transmitted and/or posted to the subject
Consumers contained in the Leads (and any website linked to or associated with
same)
(collectively, “User Content”). NWMS
undertakes no responsibility to monitor or otherwise police the User
Content. Each User and third party agrees that NWMS shall: (i) have no obligations and incur no
liabilities to such party in connection with any such User Content; and (ii)
not be liable to any party for any claim in connection with the User Content.
(g) Social Media Pages. The Site contains links to the various NWMS Social Media Pages.
The Social Media Pages are hosted and made
available on third party websites (“Social Media Websites”) by third
party entities. Your use of Social Media Pages and Social Media Websites shall be
governed by those Social Media Websites’ applicable agreements, terms and
conditions. You understand and agree that NWMS shall not be liable to you or any
third party for any claim in connection with your use of, or inability to use,
the Social Media Pages and/or Social Media Websites.
(h) Newsletter. By signing up to receive the Newsletter,
Users agree that NWMS may send a periodic newsletter containing certain NWMS
Content on a periodic basis. To unsubscribe from the Newsletter, please utilize
the unsubscribe button made available at the bottom of each Newsletter, or the
opt-out options made available in the Privacy Policy.
5.
Representations and Warranties. Each User
hereby represents and warrants to NWMS as follows: (a) the Agreement constitutes
such User’s legal, valid and binding obligation which is fully enforceable
against such User in accordance with its terms; (b) such User understands and
agrees that such User has independently evaluated the desirability of utilizing
the NWMS Offerings and that such User has not relied on any representation
and/or warranty other than those set forth in the Agreement; (c) the execution,
delivery and performance by User of the Agreement will not conflict with or violate:
(i) any order, judgment or decree applicable to such User; (ii) any provision
of such User’s corporate by-laws or certificate of incorporation, if applicable;
or (iii) any agreement or other instrument applicable to such User; (d) such
User’s performance under the Agreement, such User’s use of the NWMS Offerings,
the User Content (if applicable), User’s marketing activities associated with
the Leads and/or User’s storage and distribution of the Leads will not: (i)
invade the right of privacy or publicity of any third person; (ii) involve any
libelous, obscene, indecent or otherwise unlawful material; (iii) violate any Applicable
Law; and/or (iv) otherwise infringe upon the rights of any third parties
including, without limitation, those of copyright, patent, trademark, trade
secret or other intellectual property right, false advertising, unfair
competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory
law or regulation, or any other right of any person or entity; and (e) if applicable,
each User will be solely responsible for its User Content and any and all other
material, content, products and/or services made available on, or linked to from,
same.
To the extent required by Applicable
Privacy Laws, NWMS shall notify User, in writing, of any requests received from
a Consumer to delete that Consumer’s Personal Information, as defined below (“Requests
to Delete”). In addition, NWMS may,
in its discretion and/or where otherwise required by Applicable Privacy Laws,
notify User, in writing, of any requests received from a Consumer to opt-out
from and/or limit the use and/or sharing of sensitive Personal Information (“Request
to Limit" and together with the Requests to Delete, the “NWMS
Provided Consumer Requests”). User
shall timely act on any and all such NWMS Provided
Consumer Requests, as required by Applicable Privacy Laws, and promptly provide
NWMS with notice that each such NWMS Provided Consumer Request was acted
upon.
Where User collects Personal Information
from a Consumer online and receives an opt-out preference signal from such Consumer,
User shall recognize the signal as a valid request to opt out of the user/sharing
of such Consumer’s Personal Information and shall not retain, use, or disclose
that Consumer’s Personal Information.
Each party shall provide all assistance
as is reasonably requested by the other party to meets its obligations under
Applicable Privacy Laws with respect to responding to individuals’ Consumer
Requests (as defined below), including opt-out preference signals. Such assistance shall be promptly provided.
User shall implement, maintain
and apply, at its own cost and expense: (i) the technical and organizational
security measures prescribed by Applicable Privacy Laws; and (ii) without
limiting the foregoing, and taking into account the nature of the processing
performed by it, the technical and organizational security measures necessary
to secure the Personal Information against any Personal Information Breach (as
defined below).
With respect to any Personal Information
Breach, User shall without undue delay and within seventy-two (72) hours of
becoming aware of the Personal Information Breach: (A) notify NWMS of the
Personal Information Breach and immediately and at its own expense investigate
and take all steps necessary to identify, prevent and mitigate the effects of
the Personal Information Breach. Without
limiting the foregoing, User shall fully reimburse, indemnify and hold NWMS
harmless from and against any and all costs and/or losses that NWMS may incur
as a result of the Personal Information Breach, including any costs associated
with NWMS notifying any affected individuals; and (B) to the extent practicable
without prejudicing the continued security of the Personal Information or any
investigation into the Personal Information Breach, immediately provide NWMS
with details of the Personal Information Breach, including identifying the portions
of the Personal Information accessed, the identity of affected individuals, and
such other and additional information as NWMS may reasonably request concerning
the Personal Information Breach.
During the term of the Agreement, User
shall: (I) make available to NWMS (and to third party auditors acting on NWMS’s
behalf), upon request, all information necessary to demonstrate User’s
compliance with Applicable Privacy Laws and the requirements set forth in this
Section 5; and (II) allow for and contribute to the audit and inspection of
such material, including manual reviews and automated scans, as conducted by NWMS
and its third party auditors.
For purposes of the Agreement, “Consumer
Requests” means Consumer requests to: (aa) correct inaccurate and/or outdated
Personal Information; (bb) opt-out from and/or limit the use and/or sharing of
sensitive Personal Information; (cc) opt out from the sale and/or sharing of
any Personal Information; (dd) know the: (i) categories of Personal Information
that such party has collected about the subject Consumer(s); (ii) specific
pieces of Personal Information that such party has collected about the subject Consumer(s);
(iii) categories of sources from which the Personal Information is collected;
(iv) business or commercial purpose for collecting, selling and/or sharing the
subject Personal Information; and (v) categories of third parties to whom such
party discloses Personal Information; and/or (ee) delete any Personal
Information collected.
For purposes of the Agreement, “Personal
Information” means, in addition to any definition under Applicable Privacy
Laws, any personally identifiable information that identifies, relates to,
describes, is capable of being associated with, or could reasonably be linked,
directly or indirectly, to any individual or household that would be considered
a resident of California, Colorado, Connecticut, Utah or Virginia.
For purposes of the Agreement, “Personal
Information Breach” means any breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access to, any
Personal Information.
6.
Indemnification. Each User agrees to indemnify, defend
and hold NWMS, its parents, affiliates and/or subsidiaries, and each of their
respective officers, partners, contractors, members, managers, employees,
agents and attorneys, harmless from and against any and all liabilities,
claims, actions, suits, proceedings, judgments, fines, damages, costs, losses
and expenses (including reasonable attorneys’ fees, court costs and/or
settlement costs) arising from or related to: (a) the User Content and any and
all other information, products and/or services posted, made available and/or
linked to in connection with each User’s use of the Leads or otherwise; (b) any
dispute between User and any Consumer, Third-Party Source or other third party;
(c) User’s breach of the Agreement and/or any representation or warranty
contained herein; (d) any allegation that User (or any User Content) has
infringed upon the trademark, trade name, service mark, copyright, license,
intellectual property or other proprietary right of any third party; (e) any
claim that NWMS is obligated to pay any taxes in connection with such User’s use
of the NWMS Offerings; (f) any claim or allegation that User’s use of the NWMS
Offerings has violated any Applicable Law, including any Applicable Privacy
Laws; and/or (g) User’s improper and/or unauthorized use of the NWMS Offerings.
7.
License Grant. Each User is granted a non-exclusive, non-transferable,
revocable and limited license to access and use the NWMS
Offerings. NWMS may terminate this
license at any time for any reason.
Unless otherwise expressly authorized by NWMS, Visitors and Users may only
use the NWMS Offerings for their own personal, non-commercial use. No part of the NWMS Offerings may be
reproduced in any form or incorporated into any information retrieval system,
electronic or mechanical. No User or
other third party may use any automated means or form of scraping or data
extraction to access, query or otherwise collect material from the NWMS
Offerings except as expressly permitted by NWMS. No User or other third party may use, copy,
emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the NWMS Offerings, or any portion
thereof. No User or other third party
may create any “derivative works” by altering any aspect of the NWMS Offerings. No User or other third party may use the NWMS
Offerings in conjunction with any other third-party content. No User or other third party may exploit any
aspect of the NWMS Offerings for any commercial purposes not expressly
permitted by NWMS. Each User further
agrees to indemnify and hold NWMS harmless for that User’s failure to comply
with this Section 7. NWMS reserves any
rights not explicitly granted in the Agreement.
8.
Proprietary Rights. The NWMS
Offerings, as well as the organization, graphics, design, compilation, magnetic
translation, digital conversion, software, services
and other matters related to same, are protected under applicable copyrights,
trademarks and other proprietary (including, but not limited to, intellectual
property) rights. The copying, redistribution or publication by any User or other third
party of any part of the NWMS Offerings is strictly prohibited. No User or other third party acquires ownership
rights in or to any content, document, software, services
or other materials viewed by or through the NWMS Offerings. The posting of information or material by and
through the NWMS Offerings does not constitute a waiver of any right in or to
such information and/or materials.
9. Legal Warning.
Any attempt by any individual to damage, destroy, tamper with, vandalize
and/or otherwise interfere with the operation of the NWMS Offerings is a
violation of criminal and civil law and NWMS will diligently pursue any and all remedies in this regard against any offending
individual or entity to the fullest extent permissible by law and in equity.
10. Disclaimer of Warranties.
THE NWMS OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY
AND THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS
AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT
PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE
DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF
INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF,
NWMS MAKES NO WARRANTY THAT THE NWMS OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR
SERVICES OFFERED BY AND THROUGH SAME: (A) WILL MEET ANY USER’S REQUIREMENTS;
(B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE
CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL HAVE BEEN SCRUBBED
AGAINST THE NATIONAL DO NOT CALL LIST AND/OR WILL BE COMPLIANT WITH APPLICABLE
PRIVACY LAWS, THE TCPA, ATSR, CAN-SPAM OR ANY OTHER APPLICABLE LAW; AND/OR (E)
WILL BE ACCURATE OR RELIABLE. THE NWMS
OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME
MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NWMS WILL NOT BE LIABLE FOR THE AVAILABILITY
OF THE UNDERLYING INTERNET AND/OR MOBILE CONNECTION ASSOCIATED WITH THE NWMS OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY ANY USER FROM NWMS OR OTHERWISE THROUGH OR FROM THE NWMS OFFERINGS
SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
11. Limitation of Liability. EACH
USER EXPRESSLY UNDERSTANDS AND AGREES THAT NWMS SHALL NOT BE LIABLE TO THAT
USER OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES
FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NWMS
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT
PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE NWMS OFFERINGS
AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME; (B) THE
COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS,
DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM
OR THROUGH THE NWMS OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS AND ANY CONSUMERS,
THIRD-PARTY SOURCES AND/OR OTHER THIRD PARTIES; (D) ANY MATTER RELATING TO ANY USER
CONTENT; (E) ANY CLAIM THAT THE LEADS AND/OR ANY USE THEREOF BY USER OR ANY
THIRD-PARTY, DO NOT COMPLY WITH ANY FEDERAL AND/OR STATE E-MAIL AND/OR TELEMARKETING
LAWS INCLUDING, WITHOUT LIMITATION, APPLICABLE PRIVACY LAWS, THE TCPA, ATSR
AND/OR CAN-SPAM; (F) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER’S
REGISTRATION DATA; AND (G) ANY OTHER MATTER RELATING TO THE NWMS OFFERINGS
AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION,
IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER
TORTS. EACH USER HEREBY RELEASES NWMS FROM
ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS
STATED HEREIN. IF APPLICABLE LAW DOES
NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF NWMS TO ANY USER UNDER
ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT
OF THE NWMS OFFERINGS AND/OR ANY
OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME, MAY BE BROUGHT BY ANY USER OR NWMS MORE
THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A
FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER AND NWMS. ACCESS TO THE NWMS OFFERINGS WOULD NOT BE
PROVIDED TO ANY USERS WITHOUT SUCH LIMITATIONS.
SOME JURISDICTIONS, SUCH AS THE STATE OF NEW JERSEY, MAY NOT ALLOW
CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF NWMS
SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. Third-Party Websites.
The NWMS Offerings contain links to other websites on the Internet that
are owned and operated by third parties including, without limitation, the Social
Media Sites. NWMS does not control the
information, products or services available on or through these third party websites.
The inclusion of any link does not imply endorsement by NWMS of the
applicable website or any association with the website’s operators. Because NWMS has no control over such
websites and resources, each User agrees that NWMS is not responsible or liable
for the availability or the operation of such external websites, for any
material located on or available from or through any such websites or for the
protection of any User’s data privacy by third parties.
13.
Editing, Deleting and Modification. We reserve the right in our sole discretion
to edit and/or delete any documents, information or other content appearing on
the Site.
14. Use
of Registration Data. All
material submitted by Users through or in association with the NWMS Offerings,
including, without limitation, the Registration Data, shall be subject to the
Privacy Policy. For a copy of the
Privacy Policy, please Click
Here.
15.
Dispute Resolution Provisions. The
Agreement shall be treated as though it were executed and performed in New
York, New York and shall be governed by and construed in accordance with the
laws of the State of New York (without regard to conflict of law
principles). The
parties (and Covered Parties) hereby agree to arbitrate all claims that may
arise under and/or relate to the NWMS
Offerings and/or the Agreement. Without limiting the foregoing, should a
dispute arise between the parties/any Covered Parties including, without
limitation, any matter concerning the NWMS Offerings, the terms
and conditions of the Agreement or the breach of same by any party hereto: (a)
the parties/Covered Parties agree to submit their dispute for resolution by
arbitration before the American Arbitration Association (“AAA”) in New
York, NY, in accordance with the then current Commercial Arbitration rules of the
AAA; and (b) each User agrees to first commence a formal dispute proceeding by
completing and submitting an Initial Dispute Notice which can be found here
. The Covered Party(ies) named in a User’s Initial Dispute Notice (collectively,
the “Named Parties”) may choose to provide that User with a final written
settlement offer after receiving your Initial Dispute Notice (“Final Settlement
Offer”). If the applicable Named Party(ies) provide(s) a User with a
Final Settlement Offer and that User does not accept it, or such Named
Party(ies) cannot otherwise satisfactorily resolve that User’s dispute and that
User wishes to proceed, that User must submit your dispute for resolution by
arbitration before the AAA, in that User’s county of residence, by filing a separate
Demand for Arbitration, which is available here.
For claims of Ten Thousand Dollars ($10,000.00) or less, Users can choose
whether the arbitration proceeds in person, by telephone or based only on submissions.
If the arbitrator awards a User relief that is greater than the applicable Final
Settlement Offer, then the Named Party(ies) will pay all filing, administration
and arbitrator fees associated with the arbitration and, if that User retained
an attorney to represent that User in connection with the arbitration, the Named
Party(ies) will reimburse any reasonable attorneys' fees that User’s attorney
accrued for investigating, preparing and pursuing the claim in arbitration. Any
award rendered shall be final and conclusive to the parties and a judgment
thereon may be entered in any court of competent jurisdiction. Although
the Named Party(ies) may have a right to an award of attorneys' fees and
expenses if Named Party(ies) prevail(s) in arbitration, the Named Party(ies)
will not seek such an award from any User unless the arbitrator determines that
such User’s claim was frivolous.
To
the extent permitted by law, each User agrees that it will not bring, join or participate in any class action lawsuit as to any
claim, dispute or controversy that it may have against any of the Covered Parties a. Each User agrees to the entry of injunctive
relief to stop such a lawsuit or to remove it as a participant in the
suit. Each User agrees to pay the
attorney’s fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing Users from
bringing, joining or participating in class action
lawsuits: (A) does not constitute a waiver of any User’s rights or remedies to
pursue a claim individually and not as a class action in binding arbitration as
provided above; and (B) is an independent agreement. Any User may opt-out of these dispute
resolution provisions by providing written notice of its decision within thirty
(30) days of the date that it first accesses the Site.
16. Miscellaneous. To the extent that anything in
or associated with the NWMS Offerings is in conflict or inconsistent with the
Agreement, the Agreement shall take precedence.
Our failure to enforce any provision of the Agreement shall not be
deemed a waiver of such provision nor of the right to enforce such
provision. The parties do not intend
that any agency or partnership relationship be created through operation of the
Agreement. Should any part of the
Agreement be held invalid or unenforceable, that portion shall be construed
consistent with applicable law and the remaining portions shall remain in full
force and effect. NWMS may assign its
rights and obligations under the Agreement, in whole or in part, to any party
at any time without any notice to you. The Agreement, may not however, be assigned
by you, and you may not delegate your duties under it. Headings are for reference purposes only and
in no way define, limit, construe or describe the scope or extent of such
section.
17.
Contact Us. If any
User has any questions about the Agreement, NWMS Offerings or the practices of NWMS,
that User can email us as at: info@agedleadstore.com; or call us at: 1-888-238-9283.