The following terms and conditions (the “Terms of Service” or “Agreement”) constitute an agreement between you as a customer (“Customer”, “you” or “your”) and Lead Wrench, LLC, a Florida limited liability company, and its affiliates, successors and assigns (“Lead Wrench”, “us”, “our” or ‘we”), the owner and operator of the www.leadwrench.com website (the “Site”) and all content and features contained therein as well as any related applications, products or any other services provided by us (collectively, the Services”) regarding your use of Lead Wrench’s products and Services. BY ACCESSING THE SITE, UTILIZING ANY OF THE SERVICES AND/OR REGISTERING WITH US, YOU SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE INCLUDING OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE. Please read this Terms of Service Agreement carefully, as it contains important information regarding your legal rights and remedies. Use of the Site by you is also subject to any additional terms and conditions of third party content and/or service providers as stipulated on applicable pages of the Site or through links in this Terms of Service. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer will be subject to this Agreement.
1. Eligibility and User Accounts.
Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
In order to access some of the features of this Site or use some of the Services found at this Site, you will be required to create a user account, including a unique user name and password. Customers will be responsible for the confidentiality and use of user names and passwords. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. “Customer Data” shall mean all electronic data or information submitted to Lead Wrench by Customer or its Affiliates. Lead Wrench will act as though any electronic communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Lead Wrench of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any user’s password or name and/or Service account numbers.
2. Customer’s Lawful Conduct.
Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall store credit card data only in the designated fields for such data. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Customer will not send, nor allow its users to send, any electronic communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Lead Wrench. Customer shall not do any “mirroring” or “framing” of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s electronic communications are endorsed by Lead Wrench. Customer shall ensure that all access and use of the Service by its users is in accordance with the terms and conditions of this Agreement, including but not limited to those users that are contractors and agents, and Customer’s Affiliates. “Affiliates” shall mean any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer. In addition, Customer shall implement a privacy policy and Customer shall make such privacy policy plainly available to its users on its website.
Customer shall not:
- Copy, distribute, reinvent or work circumstance any part of the Site or the Services available on the Site in any medium without Lead Wrench’s prior written authorization
- Submit to any content that is copyrighted or subject to third-party’s proprietary rights, including privacy, publicity, trade secret, etc., unless you are the owner of such rights or have the appropriate permission from the owner of the content to specifically submit such Content to the Site.
- Attempt to scan, or test the security or configuration of the Site or to breach security or authentication measures without proper authorization.
- Tamper or interfere with the proper functioning of any part, page or area of the Site and any and all functions and Services.
3. Transmission of Data.
Customer understands that the technical processing and transmission of customer’s electronic communications is fundamentally necessary to use of the Service. Customer expressly consents to Lead Wrench’s interception and storage of electronic communications and/or Customer Data, and Customer acknowledges and understands that Customer’s electronic communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Lead Wrench. Customer further acknowledges and understands that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Lead Wrench is not responsible for any electronic communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Lead Wrench, including, but not limited to, the Internet and Customer’s local network.
4. Lead Wrench’s Support.
As part of the Service, Lead Wrench will provide Customer with online user guides and online help to assist Customer in its use of the Service (“User Guides”). Lead Wrench also offers optional and “for fee” professional services consultation, and customer support services. Customer acknowledges that Lead Wrench has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Lead Wrench and/or not engaging Lead Wrench or other Lead Wrench authorized implementation partner in the provision of professional services may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.
5. Ownership of Intellectual Property.
As between Lead Wrench and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Lead Wrench as part of its standard Service offering makes backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with Lead Wrench standard business processes, which period shall not be less than three months. Lead Wrench shall not be responsible or incur any liability with respect to any Customer Data after such period and we therefore urge our Customers to regularly back up their Customer Data. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by Lead Wrench or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, Lead Wrench shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by Lead Wrench. Lead Wrench service marks, logos and product and service names are marks of Lead Wrench, respectively (the “Lead Wrench Marks”). Customer agrees not to display or use the Lead Wrench Marks in any manner without Lead Wrench’s express prior written permission. The trademarks, logos and service marks of third party Application providers (“Marks”) are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
6. Copyright Infringement.
Lead Wrench has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”). It is Lead Wrench’s policy to (a) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers or Users; and (b) remove and discontinue service to repeat offenders.
- Written Notification. Lead Wrench will respond to notices of alleged infringement regarding third party material sent pursuant to and in accordance with the DMCA, which may include Lead Wrench removing or disabling access to third party material claimed to be the subject of infringement or other activity. Written notification must be submitted to the Designated Agent at the address identified in Address for Notice section below. All notices sent to Lead Wrench regarding matters other than informing Lead Wrench that a party's copyrighted material may have been infringed as a result of third party materials will not receive a response through this process. In order to be effective, your infringement notification must include the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single web site are covered by a single notification, a representative list of such works at that web site;
- Identification of the material (i.e., the third party materials) that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Lead Wrench to locate the material;
- Information reasonably sufficient to permit Lead Wrench to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted;
- A statement, as follows: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”; and
- A statement, as follows: “The information in this notification is accurate, and under penalty of perjury, I swear that I am the copyright owner or that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Upon receipt of a valid written notification containing the information as outlined in 1 through 6 above, Lead Wrench shall, (1) remove or disable access to the third party Content that is alleged to be infringing; (2) forward the written notification to the alleged infringer (the “Subscriber”); (3) reasonable steps to promptly notify the Subscriber that it has removed or disabled access to the third party Content.
- Counter Notification. To be effective, a Counter Notification must be a written communication provided to Lead Wrench's Designated Agent that includes substantially the following:
- A physical or electronic signature of the Subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement, as follows: “I swear under penalty of perjury that it is my good faith belief that the material identified above was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and
- The Subscriber's name, address, and telephone number, and a statement that the Subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the Subscriber's address is located, or if the Subscriber's address is outside of the United States, for any judicial district in which Lead Wrench may be found, and that the Subscriber will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a valid Counter Notification containing the information as outlined in 1 through 4 above, the DMCA provides that the removed material will be restored or access re-enabled and Lead Wrench will comply with this requirement within a reasonable time (or as otherwise required by law), provided Lead Wrench's Designated Agent has not received notice from the original complaining party that an action has been filed seeking a court order to restrain Subscriber from engaging in infringing activity relating to the material on Lead Wrench's network or system.
7. Links to Third Party Websites.
This Site and Services may contain links to third-party websites that are not owned or controlled by Lead Wrench. These links are provided solely as a convenience to you and do not constitute an endorsement by Lead Wrench of the content on such websites nor of the business practices of those operating those websites. Lead Wrench has no control over and assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. In addition, Lead Wrench does not censor or edit the content of any third-party websites. By using this Site or the Services found at this Site, you expressly release Lead Wrench from any and all liability arising from your use of any third-party website. Accordingly, Lead Wrench encourages you to be aware when you leave this Site or the Services found at this Site and to review the terms and conditions, privacy policies, and other governing documents of each other website that you may visit.
8. Fees and Payments.
The Services are available to Customer: (i) for a flat fee, for which payment is due and payable to Lead Wrench immediately upon sale and shall be remitted by valid debit or credit card, or by using Lead Wrench’s pay by PayPal option; or (ii) or at a discounted rate, in exchange for Customer granting Lead Wrench a worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or resell Customer’s Customer Data.
- Services for a Flat Fee. By providing your debit or credit card information to purchase the Services, you hereby authorize Lead Wrench to charge your card for the total cost of your Services, and you agree to be responsible for all associated charges. You represent and warrant that all information you provide in connection with Services will be accurate, current and complete. We hereby expressly reserve the right to alter or amend the fees associated with any and all Services at any time, for any reason, in our sole discretion. All Service purchases are non-refundable unless otherwise expressly noted, and Lead Wrench will not refund any fees, or portions thereof, remitted in connection with any Services under any conditions whatsoever, including upon our termination of the Terms of Service or your User account. Under no circumstances whatsoever will we permit exceptions to this policy.
- Services for License to Customer Data. By electing to purchase the Services in exchange for granting Lead Wrench a worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or resell Customer’s Customer Data, you expressly agree to notify your users of your intention to sell, rent or otherwise distribute their information to third parties for marketing or other purposes without their explicit consent. You may satisfy the foregoing condition by (i) utilizing the Privacy Policy Template available [From your account representative], which is provided to you by way of example and on an as-is basis, but only if you feel that this Template is applicable to your business, or (ii) by including language found in Sections 4 and 5 of the Privacy Policy Template into your own privacy policy. You hereby expressly agree that you will indemnify and hold Lead Wrench harmless from any claims, actions, demands and or liabilities arising out of this Section 8 or out of your violation of the covenants contained in this Section 8. You agree that in the event this Agreement is terminated by either party for any reason, Lead Wrench will retain all of the rights to Customer Data granted hereunder.
9. Warranty of Functionality.
Lead Wrench warrants that the Service (i) will achieve in all material respects the functionality described in the User Guides applicable to the Service purchased by Customer, and (ii) such functionality will not be materially decreased throughout the term Customer is receiving Services from Lead Wrench (“Term”). Customer’s sole and exclusive remedy for Lead Wrench’s breach of this warranty shall be that Lead Wrench shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the User Guides and if Lead Wrench is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the Term. Lead Wrench shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to [contact@leadwrench.com]. The warranties set forth herein are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the User Guides, this Agreement and applicable law.
10. Disclaimer of Warranties.
EXCEPT AS STATED HEREIN, LEAD WRENCH DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 9 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY LEAD WRENCH. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTION 9 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
CUSTOMER AGREES THAT THE CONSIDERATION WHICH LEAD WRENCH IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY LEAD WRENCH OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH HEREIN.
11. Customer’s Indemnity.
To the maximum extent permitted by applicable law, by using the Services you agree to defend, indemnify and hold Lead Wrench, its subsidiaries, Affiliates, partners, agents, licensors, consultants, experts, directors, officers, employees and other parties with which Lead Wrench is under contract, and their respective officers, directors, employees and agents free and harmless from and against any claims, actions and demands, including, without limitation, any legal and accounting fees resulting from: (i) your use of this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; (iii) any act or omission by your users; and/or (iv) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of the Services.
12. Suspension/Termination.
Lead Wrench reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service if (i) after Lead Wrench has provided Customer thirty (30) days notice, payment remains due on such account, or (ii) if Lead Wrench, in its sole discretion, reasonably concludes that Customer’s account is being used for service attacks, spamming, illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to Customer’s users, Lead Wrench, or any other third party.
Either Lead Wrench or Customer may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach (“Notice”). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that Lead Wrench shall be entitled to all of the fees due under this Agreement for the entire Term, or if Customer has granted Lead Wrench a license to Customer Data as consideration for the Services, Lead Wrench shall retain such license rights in the event of a termination. If this Agreement is terminated as a result of a breach on Lead Wrench’s part, Lead Wrench shall refund the pro rata portion of any subscription fees paid by Customer.
Customer agrees that following termination of Customer’s account and/or use of the Service, Lead Wrench may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days, Lead Wrench shall be entitled to delete Customer’s account from Lead Wrench’s “live” site. During this 90 day period and upon Customer’s request, Lead Wrench may grant Customer limited access to the Service for several days for the sole purpose of permitting Customer to retrieve Customer Data, provided that Customer (i) had paid a flat fee for the services, and (ii) has paid in full, all good faith undisputed amounts owed to Lead Wrench. Customer further agrees that Lead Wrench shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension or termination of the Service pursuant to this Section 12.
13. Modification; Discontinuation of The Service.
Lead Wrench may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Lead Wrench reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Lead Wrench shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 13. If Lead Wrench makes a material change to any applicable URL Terms, then Lead Wrench will notify Customer by either sending an email to the notification email address or posting a notice to the homepage of Customer’s account.
14. Arbitration
Except for disputes arising from an alleged violation of intellectual property rights or breach of confidentiality, for which the injured party may suffer irreparable harm and may seek a restraining order, preliminary injunctive relief, an injunction, specific performance or other equitable relief and/or legal remedies, and actions to enforce the decisions of the arbitrators, for which action may be taken in any court of competent jurisdiction, in the County of Hillsborough, in the State of Florida and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) to waive the right to trial by jury in any such action or proceeding that takes place relating to or arising out of this Agreement, all disputes arising out of or related to this Agreement, including the scope, the construction or application of this Agreement, shall be resolved by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in force. Any controversy 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, unless agreed to by Lead Wrench at it sole discretion. The arbitration hearings and all meetings pursuant to this section shall be held in Hillsborough County, in the State of Florida. If the parties cannot agree upon a single arbitrator within twenty (20) calendar days after demand by either of them, each party shall select one arbitrator knowledgeable about Internet commerce in Florida, and notify the other of its selection, and such two arbitrators shall select a third from a list of arbitrators (with knowledge of the Internet industry) qualified by the American Arbitration Association in Florida. If this procedure for selecting arbitrators fails, then a neutral arbitrator based in Florida with knowledge of Internet commerce in the State of Florida shall be selected by the American Arbitration Association to resolve the dispute. The arbitrator(s) shall conduct a hearing within sixty (60) days after their selection. A majority of the arbitrators (if there is more than one pursuant to this clause) shall determine the decision/award, which shall be rendered within ten (10) days after the completion of the hearing. The decision of the arbitrator(s) shall be final and binding upon the parties both as to law and to fact, and shall not be appealable to any court in any jurisdiction. The parties shall share the expenses of the arbitrators equally. Nothing in any indemnification provision hereunder shall be construed as having any bearing on the award of attorneys' fees or arbitrators' fees under this section.
15. Miscellaneous
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflict of laws principles. The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
16. Contact Information.
If you have any questions about this Agreement, please contact us via email at [contact@leadwrench.com] or regular mail at the following address:
Lead Wrench, LLC
6601 Memorial Hwy, Suite 206
Tampa, FL 33615
