CloseMoreLeads.com, Inc. Lender Services
Agreement
THIS AGREEMENT FOR SERVICES ("Agreement") is made by and
between CloseMoreLeads.com, Inc. ("We" or "CloseMoreLeads.com"), a Colorado
corporation with its principal place of business at 6510-A South Academy Blvd Suite 278 Colorado
Springs, Colorado 80906 and You, a lender, mortgage company, or mortgage
professional ("You," or "Customer") who hereby represent that You are
authorized to enter into this Agreement.
The parties hereby agree as follows:
BY CLICKING THE "I ACCEPT" BUTTON, YOU REPRESENT THAT YOU HAVE
READ AND UNDERSTOOD THIS AGREEMENT, THE TERMS AND CONDITIONS OF USE ("TCU") OF
CloseMoreLeads.COM'S WEB SITE, AND CloseMoreLeads.COM'S PRIVACY POLICY, HEREBY
INCORPORATED BY REFERENCE, AND EXPRESSLY AGREE TO, AND CONSENT TO BE BOUND BY,
ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN and WAIVE ALL RIGHT TO REJECT
THESE AGREEMENTS. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS
A WRITTEN AND SIGNED DOCUMENT.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU
MUST SELECT THE "I DO NOT ACCEPT" BUTTON. IF YOU DO SO, WE MAY PROMPTLY CANCEL
YOUR PENDING TRANSACTION(S) (IF ANY) AND RIGHT TO ACCESS CloseMoreLeads.COM,
INC.’S SITE AND YOU MAY BE UNABLE TO ACCESS THE SITE AND THE SERVICES THAT IT
OFFERS. WE RESERVE THE RIGHT TO DECLINE YOUR ACCEPTANCE FOR ANY REASON, WITH OR
WITHOUT NOTICE.
1. Term. The term of this Agreement shall begin on the date
which You click the "I accept" button. For Exclusive licensed leads [defined in
Section 5(a)] the term shall continue for a period of 45 days. For
Semi-exclusive licensed leads [defined in Section 5(b)], the term shall
continue 30 days. The term may be earlier terminated as provided in Section 11.
After any termination, all rights will revert to CloseMoreLeads.com.
2. License from CloseMoreLeads.com. A "licensed mortgage lead"
is defined as a set of data received from and relating to a single individual
who has indicated that he or she is a potential or actual mortgage customer
provided to Customer by CloseMoreLeads.com under this agreement. Subject to and
in accordance with the terms and conditions of this agreement,
CloseMoreLeads.com hereby grants Customer a limited, non-transferable,
non-assignable license and right to licensed mortgage leads solely for
Customer's use in its business of mortgage lending, including without
limitation for purposes of conducting promotional and marketing campaigns using
electronic and printed advertising, publicity, press releases, newsletters and
mailings about or related to mortgages and mortgage referral services.
3. Reservation of rights. For Semi-exclusive licensed leads,
CloseMoreLeads.com agrees that, during the term, it will not to use the leads
to market mortgage products or services to consumers. Except for that
agreement, CloseMoreLeads.com expressly reserves all rights to use licensed
leads and the information in them for any purpose whatsoever, and nothing in
this agreement shall restrict CloseMoreLeads.com from using any information or
data (e.g., names, addresses and the like) in the licensed leads to the extent
that that information or data is independently derived by CloseMoreLeads.com.
4. Restrictions on the license. This license does not include
the right to market, sell, sublicense, publish or otherwise distribute licensed
leads to third parties. Customer agrees not to retain any copies of the
licensed leads after the expiration of the term, will never add the information
in them to any database, and will not use the leads to send any e-mails or
communications of any sort with misleading subject messages, false routing
information, or false email return addresses or like unfair or illegal
communications. Customer may not resell, redistribute, or make unauthorized
copies of the licensed leads. Use of the licensed leads is to be limited to
Customer's employees at the Customer's principal place of business. Customer
agrees to take all commercially reasonable steps to prevent the disclosure to
third parties of any information in the licensed leads. Customer will be solely
responsible for complying with all laws and regulations concerning its use of
the licensed leads, and for all fees and payments related to its business and
any related duties, tariffs, imposts and similar charges, and will indemnify
and hold CloseMoreLeads.com and its officers, directors, representatives and
agents harmless against claims resulting from Customer's breach of these
obligations.
5. Lead Filters. As part of the automated process of entry
into this agreement, Customer will be asked to complete forms to create one or
more Lead Profile. The Lead Profile(s) will specify whether Customer wishes to
license, for each specific transaction, leads on an Semi-exclusive basis.
These terms have the meanings below. CloseMoreLeads.com will use commercially
reasonable efforts to ensure that Customer receives leads according to the
preferences listed in its Lead Profile. However, it is solely the Customer’s
responsibility to establish and maintain their Lead Filters, and Customer shall
be solely responsible for all leads sent to them based on preferences selected
within the Lead Profile.
5(a) Semi-Exclusive Licensed
Leads. If Customer's Lead Profile specifies "Semi-Exclusive" leads,
CloseMoreLeads.com will license no more than 4 (four) parties to use the same
lead during the term. After the 30-day license has expired, CloseMoreLeads.com
reserves the right to resell the consumer response at its own discretion.
5(b) Limitations on
Semi-Exclusivity. Customer acknowledges and agrees that Semi-Exclusive Licensed
Leads will be semi-exclusive to Customer, as CloseMoreLeads.com cannot
guarantee that any individual person(s) subject of a specific licensed lead has
not approached numerous contacts with the same inquiry, resulting in multiple
leads for the same inquiry and/or individual(s). Further, on expiration of the
term, CloseMoreLeads.com may license and use all licensed leads for any purpose
whatsoever, including licenses to third parties, at its own sole discretion.
5(c) Method of delivery. As
part of the automated process of entry into this agreement, Customer will be
asked to complete forms to create one or more Lead Profile. The Lead Profile(s)
will specify whether Customer wishes to license, for each specific transaction,
leads on Instant Delivery or Batch Delivery bases. These terms have the
meanings below.
5(c)(1) Instant Delivery. Instant delivery leads shall be delivered immediately
to the e-mail address Customer specifies in its Lead Profile. When a
prospective borrower's Free Loan Evaluation inquiry hits the CloseMoreLeads.com
database, Customer will receive the borrower’s information as fast as current
Internet technology will allow. When Customer chooses to receive leads via
Instant Delivery, Customer will receive them at all times of day, 7 days per
week unless Customer modifies or deletes its Lead Profile, or de-activates its
account altogether.
5(c)(2) Batch Lead Delivery. Batch delivery leads are gathered over a period of
time more than hours to fill Customer order based on Customer’s Lead
Profile(s). Leads within any particular batch may be hours or minutes old while
others may be up to 96 hours old. For example, if a Customer wishes to receive
leads only Monday through Friday, the batch the Customer receives on Monday may
contain leads from Monday as well as leads that came in on Saturday and Sunday.
5(c)(3) Other/liquidated damages for misrepresentation. Customer's lead profile
may also specify Microsoft Excel or Text E-mail format. Customer agrees to
complete all such forms accurately and truthfully to the best of its current
knowledge. If, in CloseMoreLeads.com sole discretion, a misrepresentation,
omission or error by Customer damages CloseMoreLeads.com or its customers, the
Customer agrees that, as a penalty, CloseMoreLeads.com may retain all funds in
Customer's account as liquidated damages. The parties acknowledge and agree
that the harm which would result to CloseMoreLeads.com from such a breach of
this agreement would be extremely difficult to ascertain. Therefore, Customer
agrees to pay liquidated damages in an amount equal to the amount in its
account on each occasion that this section of this agreement is breached by it.
The parties agree that this amount of liquidated damages represents a
reasonable forecast of just compensation for the harm which would be caused by
any breach, and is not a penalty. If a court concludes that this amount of
liquidated damages constitutes an unenforceable penalty, the court may reduce
the amount of liquidated damages to an amount that it deems just. Elements of
damages difficult to determine as to value and extent of harm include loss of
customer goodwill, loss of business advantage, harm to CloseMoreLeads.com's
current or future business prospects by the misuse of its system or the
improper disclosure or misuse of its business information. Nothing in this
section shall be construed to limit CloseMoreLeads.com's rights to seek
injunctive relief, or any other remedy, in law or in equity, in lieu of or in
addition to the remedy provided for by this section.
6. Returns. The licensed leads will meet the standards
established by CloseMoreLeads.com from time to time. It is Customer's
responsibility to verify accuracy of information contained in the leads. If
Customer believes that any lead is sub-standard (contains clearly false contact
information), it must notify CloseMoreLeads.com Inc. within 5 business days of
purchase to receive credit. While refunds are not available, CloseMoreLeads.com
will use commercially reasonable efforts to provide Customer with replacement
leads on a dollar for dollar basis, if, on receipt of notice of a substandard
lead, CloseMoreLeads.com verifies that it is substandard. CloseMoreLeads.com
shall not be responsible for any lead which is not confirmed received and shall
have no obligation to deliver leads before receiving payment from Customer.
7. Payments. Customer agrees to accept the licensed leads and
pay for them in accordance with the terms of this agreement. Customer agrees to
prepay for all leads. CloseMoreLeads.com will not have any obligation to
deliver licensed leads to Customer until verified funds have been received.
When Customer’s account reaches a zero balance, CloseMoreLeads.com will no
longer deliver licensed leads to Customer.
7. (a) Subscription Payments. The funds accepted
for the purpose of Subscription on the CloseMoreLeads.com, Inc. website is for
prepayment of leads. There are no additional administrative costs. These funds
may be used for any leads found on the CloseMoreLeads.com website. Values on
all leads chosen will be deducted from the account balance until balance
reaches zero. Customers may add more funds in order to obtain more leads at
their listed prices.
7. (b) Inactive account. If customer does not
access their account by logging in at
https://www.closemoreleads.com/signin.aspx and customer's account has no sales
activity for a period of 90 days customer's account will be deemed an Inactive
Account. Any balance of funds under $500 (U.S. Dollars) in an inactive account
are considered abandoned funds and shall be forfeited to CloseMoreLeads.com
without further recourse from customer. Said forfeiture shall reflect on
customer's account as a negative adjustment for "inactive account" which
adjusts customer's account balance to $0 (U.S. Dollars). The inactive account
adjustment is non-refundable. Customer may reinstate account at any time in the
future by depositing new funds into customer's account.
8. Access and control. Customer understands and agrees that
the site may, at times, be inaccessible or inoperable for any reason,
including, but not limited to: (i) equipment or communications malfunctions;
(ii) periodic maintenance, repairs, or administrative reviews which we may
undertake from time to time; or (iii) causes beyond our control or which are
not reasonably foreseeable. CloseMoreLeads.com will store sensitive information
on a secure server with limited Internet access and take other reasonable
security precautions. Customer will be provided with an account ID and password
allowing access to the site. Customer shall be solely responsible for the
confidentiality of the ID and password and for any authorized or unauthorized
access to this site by any person the ID and/or password. Customer agrees to
notify CloseMoreLeads.com immediately of any unauthorized use of the password,
ID, or any other breach of security discovered by Customer. CloseMoreLeads.com
will provide technical assistance in dealing with any difficulties which may
arise in connection with the Customer's use of the web site, and will attempt
to provide such support in a timely manner, but make no guarantees that each
inquiry will be addressed in a particular time frame. Neither
CloseMoreLeads.com nor any of its employees can be held responsible to respond
to Customer’s requests via telephone, e-mail, or fax to modify a Customer's
Lead Profile. All modifications to Lead Filters are Customer’s responsibility.
9. Warranties and indemnities, termination, disclaimers.
Customer warrants and represents that: The person entering this agreement is
over eighteen years of age and has all right, power, and authority to execute,
deliver, and perform the agreement; Customer is qualified to enter the
agreement because it meets all qualifications which may from time to time be
listed on the CloseMoreLeads.com web site and because it is a licensed U.S.
lending institution or mortgage company; it will conduct its business at all
times (including, without limitation, performance of its obligations under this
agreement) in a manner that reflects favorably on the goodwill and reputation
of CloseMoreLeads.com, and will never publish, including electronically,
material which is actually or potentially obscene, indecent, offensive,
defamatory, unlawful, misleading, miscategorized, infringing of any proprietary
or privacy right, third party contract, “SPAM” law, or violation of any law
established in a "do not call" list or registry (including, but not limited to
violation of any U.S. law or regulation, the federal rules and regulations
known as and including the Telephone Consumer Protection Act of 1991,
Telemarketing Act, Telemarketing Sales Rules, or the Do-Not-Call Implementation
Act, and any later federal or state laws and regulations of similar effect), or
other statute or regulation. Customer will defend, indemnify and hold
CloseMoreLeads.com, its officers, directors and representatives harmless from
and against any and all damages, liabilities, costs and expenses (including
reasonable attorney's fees) incurred as a result of any third party claim
arising out of (i) any breach or alleged breach of this agreement or any
representation, warranty or obligation set forth in this agreement, or (ii) its
use of licensed leads or any other information or assistance provided by
CloseMoreLeads.com to it.
In connection with this indemnity, Customer will give
CloseMoreLeads.com prompt notice of any claim against it (ii) provide such
cooperation, at its own expense, in defense or settlement of the claim or
action as CloseMoreLeads.com may reasonably request.
CloseMoreLeads.com may terminate this agreement effective
immediately if Customer is in breach of this agreement, or if Customer (i)
Makes a general assignment for the benefit of creditors, (ii) files a voluntary
petition of bankruptcy, suffers or permits the appointment of a receiver for
its business or assets, (iii) becomes subject to any proceedings under any
bankruptcy or insolvency law where such proceeding has not been dismissed
within sixty (60) days, or (iv) has wound up or liquidated, voluntarily or
otherwise. Further, we reserve the right, at our sole discretion, to terminate
this agreement for any reason or no reason. CloseMoreLeads.com's web site(s)
and all contents of the web site are provided AS-IS, and CloseMoreLeads.com
EXTENDS NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO
THE LEADS OR ANY OTHER GOODS OR SERVICES PROVIDED TO OR RECEIVED BY CUSTOMER.
NO WARRANTIES ARE GIVEN THAT THE WEB SITE WILL BE SECURE, UNINTERRUPTED,
ACCESSIBLE, OR ERROR-FREE; AND/OR THAT ANY INFORMATION OR MATERIAL OBTAINED
FROM THE SITE WILL BE ACCURATE, RELIABLE, COMPLETE, OR FREE FROM VIRUSES OR
OTHER FORMS OF MALICIOUS OR DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED
FROM CloseMoreLeads.COM, WHETHER IN ORAL, WRITTEN OR ELECTRONIC FORM SHALL
CREATE ANY WARRANTY OR OBLIGATION NOT EXPRESSLY STATED IN THIS AGREEMENT.
CloseMoreLeads.com will not be liable, under any
circumstances, for special, punitive, indirect, incidental, or consequential
damages and UNDER NO CIRCUMSTANCES SHALL CloseMoreLeads.com BE LIABLE TO
Customer OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS
AGREEMENT, THE SITE OR SERVICE, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT
LIMITED TO: (A) USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR
INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR
ALTERATION OF, ANY TRANSMISSION OR DATA; (D) ANY MATERIAL OR DATA TRANSMITTED
OR RECEIVED OR NOT TRANSMITTED OR RECEIVED; AND/OR (E) ANY DATA OR MATERIAL
FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, WHETHER SUCH LIABILITY IS
ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME STATES PROHIBIT THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS
LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. Customer understands that leads
may contain inaccurate information entered by potential mortgage customers and
others, and that CloseMoreLeads.com has made no effort to verify that
information. In no event will CloseMoreLeads.com's liability to Customer exceed
the total amount paid to it by Customer under this agreement. No claim or
action relating to this agreement may be instituted more than one (1) year
after the event giving rise to such action or claim. This provision will
survive any termination of this agreement.
10. Modification and Amendment. CloseMoreLeads.com has the
right, at any time and without notice, to add to or modify the terms of this
agreement, the TCU, and/or the Privacy Policy by posting such amended terms on
the web site. Customer's access to or use of the site after the date such
amended terms are posted shall be deemed to constitute acceptance of such
amended terms. No modification made by Customer shall be binding unless it is
made in writing and signed by CloseMoreLeads.com.
11. Other provisions. This agreement will be governed and
construed in accordance with the laws of the state of California without giving
effect to its conflict of law principles. Customer hereby irrevocably consents
to the personal jurisdiction of and venue in the state and federal courts
located in Orange County, California with respect to any action, claim or
proceeding arising out of or related to this agreement and agrees not to
commence or prosecute any such action, claim or proceeding other than in such
courts. If any provision of this agreement is held to be invalid or
unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way. The parties agree to
replace any invalid provision with a valid provision which most closely
approximates the intent and economic effect of the invalid provision. In the
event that it is necessary for either party of this agreement to employ an
attorney to enforce its terms or to file an action to enforce any of the terms,
conditions or rights contained herein, or to defend any action then the
prevailing party in any such action shall be entitled to an award of its
reasonable attorney fees, costs and expenses. Headings are for reference
purposes only and in no way define, limit, construe or describe the scope or
extent of such section, or in any way affect this agreement. This agreement may
be executed in one or more counterparts, each of which will be deemed an
original and all of which will be deemed to be one instrument, and
electronically executed copies of the agreement will be equivalent to original
documents. This agreement and its exhibits set forth the entire understanding
and agreement of the parties, and supersede any and all prior or
contemporaneous oral or written agreements or understandings between the
parties, as to the subject matter of this agreement. In the event of any
conflict between the agreement and an exhibit, the terms of the exhibit will
control.
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