Effective Date December 10, 2020
LeadLander is an online service and reporting tool offered by LeadLander, Corporation that allows companies (“Customers”) to track and identify website visitors. The LeadLander product (“Services”) comprises the core LeadLander product (“Core Services”) and the LeadLander Contact Network (“Extended Services”). All LeadLander Customers utilize the Core Services while Extended Services are available only by specific opt-in. For more information on our Services, please click here. The Services include, without limitation, any software code or scripts supplied by LeadLander (“Code”), applications used to access the Services (“Applications”), LeadLander Content (as defined below), and services used or received by LeadLander.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING OUR SERVICES.
1. Acceptance of Terms
2. Use and Compliance
a. Customer Responsibilities. Customer shall be responsible for complying with these Terms of Service, (ii) use the Services only in accordance with these Terms of Service, (iii) be responsible for the accuracy, quality, integrity and legality of User Data and of the means by which Customer acquired such User Data, (iv) treat the Code as LeadLander confidential information not to be disclosed publicly and afford the Code the same protections You would provide to Your confidential information, and (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and immediately notify LeadLander in writing of any such unauthorized access or use or violation by Customer or its customers, clients or users (collectively “Users”) of these Terms of Service. If there is any unauthorized use of the Services, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by LeadLander to prevent or terminate unauthorized use of the Services.
b. Restrictions. Except as otherwise explicitly provided in these Terms of Service or as may be expressly permitted by applicable law, Customer shall not, and will not permit or authorize its Users or third parties to: attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Applications or Code or
(ii) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Services (including the Code), or otherwise make the Services available to any third party (e.g., as a service bureau) or
(iii) circumvent or disable any security or other technological features or measures of the Services. c. Customer Representations. By accepting these Terms of Service and using the Services, You represent and warrant that: All registration information You submit to LeadLander is truthful and accurate and You will maintain the accuracy of such information (including all billing information)
(ii) Your use of the Services does not violate any applicable law or regulation
(iii) You are in compliance and will remain in compliance with Section 4(c) (Required Privacy Notices) of these Terms of Service for as long as You use the Services and
(iv) You are not currently restricted from using the Services.
3. Access to the Services
a. Accounts. To use the Services, You must create a user account (“Account”). If You create an Account, You agree to provide LeadLander current, complete, true and accurate information, and to update this information should it change. If You create an Account, You may be asked to choose a password and a user name. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT OCCUR IN ASSOCIATION WITH YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU. You agree to notify LeadLander immediately of any unauthorized use of Your Account or any other breach of security and to provide properly documented evidence as requested by LeadLander. You may not use anyone else’s Account at any time and You may not allow anyone else to use Your Account at any time. You agree that LeadLander will not be liable for any loss You may incur as a result of someone else using Your password or Account, either with or without Your knowledge, and You further agree that You will be liable for losses incurred by LeadLander or another party due to someone else using Your Account or password. LEADLANDER RESERVES THE RIGHT TO TERMINATE OR SUSPEND YOUR ACCOUNT AND/OR ACCESS TO THE SERVICES AT ANY TIME, FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU INCLUDING BUT NOT LIMITED TO VIOLATION OF THESE TERMS OF SERVICE. LEADLANDER ALSO RESERVES THE RIGHT TO CHANGE OR DISCONTINUE ANY SERVICE OR FEATURE PROVIDED BY LEADLANDER, INCLUDING, WITHOUT LIMITATION, THE SERVICES, AT ANY TIME AND WITHOUT NOTICE. YOU AGREE THAT LEADLANDER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY SUCH TERMINATION, SUSPENSION, CHANGE OR DISCONTINUANCE. In the event that Your Account is terminated, suspended or canceled, no refund will be granted and no other credits will be issued to You, and You will have no further access to Your Account or the Services.
b. Charges and Billing. You agree to pay all fees or charges incurred by Your Account, including applicable taxes, in accordance with these Terms of Service and the billing terms that are in effect at the time that the fee or charge becomes payable. You agree to provide LeadLander (or LeadLander’s payment agent) with current, complete, true and accurate billing information, such as Your credit card or other payment system number and expiration date. Unless otherwise indicated, all prices are in U.S. Dollars. LeadLander may add new services for additional fees and charges, or proactively amend fees and charges for existing Services (including, without limitation, terms with respect to fees and charges), at any time in its sole discretion upon notice to You. You represent to LeadLander that You are an authorized user of the chosen method of payment used to pay all fees or charges incurred by Your Account.
4. Privacy and Required Privacy Notices
d. Verifiable Consumer Requests. You agree to provide Your best efforts to assist Leadlander in responding to any Verifiable Consumer Requests based on Your use of our Services on Your Website(s).
e. GDPR. You agree to provide Your best efforts to assist Leadlander in responding to any exercise of data subject rights under the GDPR or any GDPR complaint lodged with a supervisory authority based on Your use of our Services on Your Website(s).
5. Proprietary Rights.
a. Ownership. The Service contains LeadLander intellectual property including copyrighted material, trademarks, and other proprietary information of LeadLander. You acknowledge and agree that LeadLander and its licensors shall own and retain all proprietary rights in the Services including all data, images, drawings, photographs, text, content, messages, profiles and any and all other material and information You see as part of the Services (“LeadLander Content”), including, without limitation, rights to the selection, coordination, arrangement and enhancement of such LeadLander Content.
b. Statistics. By installing the Code, You are permitting LeadLander to collect and access various website statistics regarding users of your site. LeadLander shall own all Service Data collected as a result of Your use of the Services.
c. Limited License to Code. LeadLander hereby grants You a revocable, non-exclusive, non-transferable license (without the right to sub-license) to include, incorporate or embed the Code in Customer website(s) that are properly registered for the Service and owned by You, solely for the purpose of using the Service.
6. Termination & Survival
These Terms of Service are effective until terminated. Without prejudice to LeadLander’s other rights hereunder, if You breach these Terms of Service in any way, then LeadLander may take such action as appropriate to deal with the breach, including suspending Your access to our Services without notice, prohibiting You from accessing our Services, blocking computers using Your IP address from accessing our Services, contacting Your internet service provider to request that they block Your access to our Services and/or bringing court proceedings against You. LeadLander may terminate these Terms of Service with or without notice to You by terminating Your Account as set forth in Section 3(a) (Accounts). If LeadLander terminates Your Account because You have breached these Terms of Service, You will not be entitled to any refund of any unused subscription fees and You may also be barred from any future use of the Services. You may cancel Your Account by sending an email to email@example.com with the subject line “Service Termination”. Such termination is not effective until acknowledged by LeadLander but not more than 20 business days after sending such termination email. Provided, that in no event may you terminate services (other than for LeadLander’s material breach) before the end of the then-current term. Upon termination of Your Account, You will lose access to the Services. The provisions of Sections 4 (Privacy and Required Privacy Notices), 5 (Proprietary Rights), 6 (Termination and Survival), 7 (Individual Arbitration and Class Action Waiver, 8 (Jurisdiction and Choice of Law), 9 (Warranties and Disclaimers), 10 (Limitation of Liability), 11 (Indemnification), 12.b (Notices), and any other terms that imply an obligation for either party following termination shall survive any termination of these Terms of Service.
7. Individual Arbitration and Class Action Waiver
a. Purpose. The term “Dispute” means any dispute, claim, or controversy between you and LeadLander or any of our affiliates regarding this website or any service thereon, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. If you have a Dispute with LeadLander or any affiliate of ours or any of our or their officers, directors, employees or agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury. Any Dispute will be governed by the Limitation of Liability in paragraph 10 (Limitation of Liability) below.
b. Exclusions from Arbitration. YOU AND US AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY LEADLANDER OR OUR AFFILIATE IN SMALL CLAIMS COURT ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION.
c. Notice of Dispute. IF YOU HAVE A DISPUTE WITH LEADLANDER OR ANY OF OUR AFFILIATES, YOU MUST SEND WRITTEN NOTICE TO 100 Meadowcreek Drive, Suite 101, Corte Madera CA 94925 TO GIVE LEADLANDER OR OUR AFFILIATE YOU HAVE A DISPUTE WITH THE OPPORTUNITY TO RESOLVE THE DISPUTE INFORMALLY THROUGH NEGOTIATION. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute. If we or our affiliate you have a Dispute with does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you, LeadLander or our affiliate you have a Dispute with may pursue your claim in arbitration.
d. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
e. Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or the entity you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this section govern in the event they conflict with the rules of the arbitration organization selected by the parties.
f. Arbitration Procedures. Because the software and/or service provided to you by the entity you have a Dispute with concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcemen
g. Location of Arbitration. You or the entity you have a Dispute with may initiate arbitration in either Marin County, California or the county in which you reside. In the event that you select the county of your residence, the entity you have a Dispute with may transfer the arbitration to Marin County, California in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
h. Severability. If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and you and the entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
i. Continuation. This Section shall survive any termination of this Terms of Service or the provision of the associated services to you.
8. Jurisdiction and Choice of Law
These Terms of Service, and any disputes arising from or relating to the conduct covered by the Terms of Service, are governed by the laws of the State of California. ANY DISPUTE NOT SUBJECT TO ARBITRATION WILL BE LITIGATED BY EITHER PARTY IN A COURT OF COMPETENT JURISDICTION ONLY IN Marin County, California. LeadLander and You shall submit to the personal and exclusive jurisdiction of the courts located in Marin County, California, without regards to any principles of conflicts of laws and the United Nations Convention on Contracts for the International Sale of Goods. Those who choose to access the Services from locations outside of the United States do so on their own initiative contrary to the terms of these Terms of Service, and are responsible for compliance with local laws if and to the extent local laws are applicable.
9. Warranties and Disclaimers
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND YOUR RELIANCE THEREON. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE) OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, EXCEPT TO THE EXTENT SUCH WARRANTIES OR CONDITIONS ARE LEGALLY INCAPABLE OF EXCLUSION. LEADLANDER DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES (OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION THE LEADLANDER CONTENT) OR THAT THE SERVER(S) ON WHICH THE LEADLANDER APPLICATION ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO COMMUNICATION OF ANY KIND BETWEEN YOU AND LEADLANDER OR A REPRESENTATIVE OF LEADLANDER SHALL CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND AS A CONSEQUENCE SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
10. Limitation of Liability
LEADLANDER AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, DISTRIBUTORS, SUBCONTRACTORS, SUBLICENSEES AND AGENTS (THE “LEADLANDER PARTIES”) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES), WHETHER BASED IN STATUTE (including without limitation, alleged violations of the California Consumer Privacy Act of 2018 or the General Data Protection Regulation (GDPR)), CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, WHICH YOU MAY INCUR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICES OR INTERACTIONS WITH LEADLANDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO CASE SHALL THE LIABILITY OF THE LEADLANDER PARTIES TO YOU EXCEED THE AMOUNT THAT YOU PAID TO LEADLANDER OR ITS DESIGNEES FOR THE SERVICES GIVING RISE TO ANY SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE MONTH IN WHICH THE MOST RECENT EVENT GIVING RISE TO LIABILITY OCCURRED. IN CASES WHERE NO FEES ARE PAID BY YOU (e.g., FREE TRIAL SUBSCRIPTIONS), THE LIABILITY OF THE LEADLANDER PARTIES SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). NO COMMUNICATION OF ANY KIND BETWEEN YOU AND LEADLANDER OR A REPRESENTATIVE OF LEADLANDER SHALL CONSTITUTE A WAIVER OF ANY LIMITATIONS OF LIABILITY HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND AS A CONSEQUENCE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF THE COMPANY PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless LeadLander and its directors, officers, employees, agents, shareholders, licensors, parent companies, affiliates and representatives, from and against all claims, damages, obligations, losses, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) arising out of: (i) Your use of, access to, or activities in connection with the Services; (ii) any violation of these Terms of Service by You or through Your Account or using Your user name including without limitation violations of the representations and warranties and privacy notice requirements; (iii) Your violation of any third-party right, including without limitation any right of privacy or intellectual property right; (iv) any action, inquiry or investigation brought against or involving LeadLander by a third party or governmental agency alleging that any data or materials made available by you or to LeadLander or transmitted to LeadLander during your use of the LeadLander Service (including User Data) violates a privacy right or privacy-related or data protection law, or (vi) Your violation of any applicable law, rule or regulation.
12. Communications From LeadLander
a. Communications and Newsletters. By providing Your email address to LeadLander or subscribing to LeadLander Services, You understand You may receive periodic information regarding current and future services offered on Services and/or related third party products. You may unsubscribe at any time by following the directions contained in each such communication or newsletter.
b. Notices. Notices to You from LeadLander may be made via a posting to Your Account, by email to the email account we have on file for You, or by regular mail, in LeadLander’s discretion. Without limitation, You agree that a printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
c. Updates to LeadLander’s Terms of Service. From time to time, LeadLander may update these Terms of Service to reflect feedback from our users or changes to LeadLander policy. If there are material changes to these Terms of Service or how LeadLander operates, we will prominently post a notice describing the changes through Your account for thirty (30) days prior to such changes taking effect. Your acknowledgement of change to our Terms of Service and continued use of the Service after a change or update has been made to the Terms of Service constitutes Your acceptance of such change or update. We encourage You to review these Terms of Service occasionally to ensure that You are familiar with LeadLander’s current practices.
13. Contact LeadLander
If You have any questions regarding these Terms of Service, You can contact us at:
By email to firstname.lastname@example.org or
By U.S. Mail post to:
100 Meadowcreek Drive, Suite 101
Corte Madera, CA 94925
a. Entire Agreement: These Terms of Service, including without limitation the documents expressly incorporated by reference, constitute the entire agreement between You and LeadLander with respect to its subject matter. These Terms of Service supersede all prior or contemporaneous communications, whether electronic, oral or written, between You and LeadLander with respect to its subject matter and You represent that You have not relied on any such communications in accepting these Terms of Service.
b. Severability: If any provision of these Terms of Service is determined by any court or other competent authority to be unlawful and/or unenforceable, then the unlawful and/or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the other provisions will continue in effect.
c. Assignment: LeadLander may assign, sub-contract or otherwise deal with LeadLander’s rights and/or obligations under these Terms of Service, in whole or in part, at any time and without notifying You or obtaining Your consent. You may not assign, transfer or sublicense these Terms of Service or any or all of Your rights or obligations under these Terms of Service.
d. Waiver: No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
e. Headings: The paragraph and section headings, captions and titles provided herein are for convenience only and shall have no effect on the meaning of the provision.