THIS AGREEMENT (the "Agreement") is entered into by and between LeadCast, a division of Trancos Inc., and the applying party submitting the application for Lead Buyer status. This Agreement supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties. The Parties agree to be legally bound by these terms and conditions and the specific terms and conditions of any bid that the Lead Buyer completes, including all payment terms (collectively, "Agreement").
LeadCast ("LeadCast") provides Lead Buyer access to the Platform (as defined below), as available through the LeadCast Web site, subject to Lead Buyer's compliance with these terms and conditions. LeadCast matches lead sellers ("Lead Sellers") with lead buyers ("Lead Buyers") via the Platform. The Lead Sellers may earn financial compensation payments ("Payouts") for qualifying data transmitted to LeadCast ("Leads") using the LeadCast Application Form. The Lead Buyers will compensate the Lead Sellers for the Leads, in accordance with this Agreement and the Lead Seller Service Agreement.
1. Use. For purposes of this Agreement, the "Platform" is the marketplace where Lead Buyer places bids on Leads to be provided by Lead Sellers, subject to LeadCast's Terms & Conditions. Lead Buyer agrees that Lead Buyer's bids may be included in the Platform and may be made available to Lead Sellers. In all cases, information must be submitted in the form requested by LeadCast. LeadCast reserves the right to edit, refuse, reject or remove any listing at its discretion at any time and for any purpose. At no time is LeadCast under any obligation to supply Leads; It simply offers the Platform to facilitate a market place to provide an opportunity for Lead Buyers to find and source Leads.
2. Payment. Lead Buyer shall be responsible for all charges up to the amount as set in an online account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Lead Buyer is responsible for paying (y) all taxes, government charges, and (z) reasonable expenses and attorneys fees LeadCast incurs collecting late amounts. To the fullest extent permitted by law, Lead Buyer waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid leads) unless claimed within 60 days after the charge. Charges are solely based on LeadCast's measurements for the applicable Program. Lead Buyer agrees to pay LeadCast for all charges to Lead Buyer's "Account", in accordance with this Agreement. Billing terms may be amended or modified by LeadCast from time to time in its sole discretion. ). Lead Buyer agrees that any service fees charged to Lead Buyer's Account and Lead Buyer's initial deposit, the value of which will be credited to Lead Buyer's Account, are non-refundable. Further, Lead Buyer agrees that Lead Buyer will be charged all amounts owed under the terms of any bids that Lead Buyer makes that are fulfilled. Lead Buyer authorizes LeadCast to charge Lead Buyer's credit card or debit card or alternatively undertake to set up and maintain for the duration of the Agreement a direct debit arrangement with Lead Buyer's bank (hereinafter Lead Buyer's "Payment Method") for all charges to Lead Buyer's Account. Should LeadCast not receive payment from Lead Buyer, LeadCast reserves the right to either suspend or terminate Lead Buyer's Account with LeadCast in such circumstances. Suspension or termination includes but is not limited to, removal of Lead Buyer's bids from the Platform.
With the Credit Card option, LeadCast initially bills the Lead Buyer $500, and will deduct from that amount as the Lead Buyer wins the rights to Leads. Upon exhaustion of the initial charge, LeadCast extends $1000 of credit at a time. LeadCast will charge the Lead Buyer's credit card with the total current balance incurred upon one of two conditions: (1) the Lead Buyer has spent the entire $1000 credit amount or an amount in excess of $1000 or (2) upon reaching the end of any given week with a balance of more than $100, whichever comes first. If the balance is less than $100 at the end of a week, LeadCast will not charge the credit card.
If the Lead Buyer exceeds $3,500 in purchases within one month, the Lead Buyer is upgraded to an Executive Account. As such, the Lead Buyer will switch Payment Methods to either Check or Wire transfer, and will be subject to credit approval by LeadCast. Should the Lead Buyer's account exceed $5,000 in any month prior to transferring the payment method to Check or Wire Transfer, LeadCast will deactivate the Lead Buyer's account an all associated campaigns until the credit application has been processed and the Lead Buyer's account has been upgraded to Executive status.
Lead Buyer represents, warrants and undertakes that all information Lead Buyer provides, whether on behalf of Lead Buyer's or of any third parties. Lead Buyer agrees to promptly update all information to keep Lead Buyer's Account and Payment Method current, complete and accurate (such as a change in billing address, credit card or debit card number, or expiration date), and to promptly notify LeadCast if Lead Buyer's payment method is cancelled (e.g., for loss or theft) or if Lead Buyer becomes aware of a potential breach of security, such as the unauthorized disclosure or use of Lead Buyer's login information to the LeadCast Platform. Changes to such information can be made at our web site located at HYPERLINK "http://www.LeadCast.com" www.LeadCast.com. If Lead Buyer fails to provide LeadCast with any of the foregoing information, Lead Buyer agrees that LeadCast may continue charging Lead Buyer's Account for any use of the Platform unless Lead Buyer has terminated Lead Buyer's participation in the Platform as set forth in this Agreement.
Unless Lead Buyer discontinues Lead Buyer's enrollment in this Payment Plan, Lead Buyer understands that the pre-authorization for the Authorized Charge Amount is valid until the termination of this Agreement with LeadCast or the discontinuation of, or Lead Buyer's participation in, this Payment Plan as determined by LeadCast. At no time will LeadCast offer any credit to the Lead Buyer.
3. Use of Leads. Lead Buyer further represents, undertakes and agrees that Lead Buyer will not use any Lead for unsolicited bulk mail messages ("junk mail" or "spam") or in engaging illegal telemarketing activities and that all times a Lead will be used only in accordance with all applicable laws.
Lead Buyer agrees that any of Lead Buyer's agents, representatives, employees, or any person or entity acting on Lead Buyer's behalf with respect to the use of the Platform (as defined below), shall be bound by, and shall abide by, these terms and conditions. Lead Buyer further agrees that Lead Buyer is bound by this Agreement whether Lead Buyer is acting on Lead Buyer's own behalf or on behalf of a third party, including another lead buyer.
Minimum Bid. Lead Buyer's bids are subject to LeadCast's current minimum bid requirements.
LeadCast reserves the right to immediately deactivate Lead Buyer's Account and Lead Buyer's use of the Platform if LeadCast discovers that any Lead submitted by LeadCast is used other than in accordance with the laws or regulations mentioned in this Section 7 above. Further, Lead Buyer agree to indemnify and hold LeadCast harmless from any claim resulting from the use of methods in breach of any such law or regulation by Lead Buyer and Lead Buyer's affiliates or by other third parties on Lead Buyer's behalf.
4. Indemnification and Limitation of Liability. Lead Buyer agrees to indemnify and hold harmless LeadCast and each of its agents, officers, directors and employees against all liability to third parties resulting from the acts or failure to act of such indemnifying party, or any of its customers or users. UNDER NO CIRCUMSTANCES SHALL LeadCast PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR COSTS, DIRECT OR INDIRECT, (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM MERCHANT PARTICIPATION IN LeadCast PLATFORM. LeadCast SHALL NOT IN ANY EVENT BE LIABLE TO LEAD BUYER FOR MORE THAN THE AMOUNT PAID TO LEADCAST BY MERCHANT FOR SERVICES RENDERED HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST LeadCast MORE THAN ONE YEAR AFTER THE DATE OF SERVICE.
5. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.
6. Remedies. LeadCast reserves the right to take appropriate legal action to cover its damages against any Lead Buyer that violates the terms of this Agreement, or commits fraudulent activity against LeadCast. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
7. Governing Law. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of California.
8. Dispute Resolution. The parties will attempt in good faith to resolve through negotiation any dispute, claim, or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof .
9. Non-Compete Non-Circumvention. During the term of this Agreement and for a period of 180 days thereafter, Lead Buyer agrees that it will not engage, contract with, license, or permit any person, firm, or entity to represent Lead Buyer in any performance-based advertising relationship with any of LeadCast web site partners, Media Sites, affiliates, including, without limitation, those that are part of the LeadCast Platform or any entity that was such a partner or affiliate of LeadCast as of six (6) months prior to the conclusion or termination of this Agreement, without prior written approval by authorized party at LeadCast.
10. Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
11. Temporary Deactivation and Termination. This Agreement may be terminated by either party upon 30 days' prior written notice. Notwithstanding the foregoing, this Agreement may be terminated immediately upon notice for Lead Buyer's breach of this Agreement, or if Lead Buyer infringe LeadCast's intellectual property rights during the term of this Agreement. Lead Buyer's Account may be deactivated as a result of any material breach of this Agreement pending termination or remedy of Lead Buyerr breach (where such breach is remediable). If this Agreement is terminated for Lead Buyer's breach, Lead Buyer shall not be eligible to enter into a new Lead Buyer Agreement with LeadCast, and any attempt to do so shall be null and void. Upon termination of this Agreement, Lead Buyer agree to immediately destroy or delete all physical and electronic copies of LeadCast's intellectual property or other proprietary materials and any Confidential Information. LeadCast reserves the right to terminate or suspend the Account of any Lead Buyer that may breach any of the terms or conditions in this Agreement.
12. WARRANTY DISCLAIMER. LEAD BUYER EXPRESSLY AGREES THAT LEAD BUYER'S USE OF THE PLATFORM AND THE LEADCAST WEB SITE IS AT LEAD BUYER'S OWN RISK. THE PLATFORM, THIRD PARTY PRODUCTS AND INFORMATION AND LEADCAST WEB SITES ARE ONLY AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER LEADCAST NOR ANY OTHER LEADCAST GROUP COMPANY MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PLATFORM, THIRD PARTY PRODUCTS OR INFORMATION, OR LEADCAST WEB SITES, THE SUCCESS OF LEAD BUYER'S USE THEREOF AS MEASURED IN ANY WAY, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH LEADCAST, THIS AGREEMENT, THE PLATFORM, OR LEADCAST WEB SITES OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THEREFROM, OR WEB SITES LINKED THERETO OR THEREFROM. LEADCAST HEREBY EXCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW ON BEHALF OF ITSELF AND ALL LEADCAST GROUP COMPANIES ANY AND ALL WARRANTIES AND ANY TERMS, CONDITIONS, REPRESENTATIONS OR OTHER TERMS WHETHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE INCLUDING, WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PLATFORM, OR LEADCAST WEB SITES OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THEREFROM AND THROUGH THE WEB SITES LINKED THERETO OR THEREFROM OR THE SUCCESS OR NUMBER OF ANY BIDS SUBMITTED THERETO OR LEADS RESULTING THEREFROM; (2) ANY WARRANTIES OR CONDITIONS OF TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE; (3) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (4) THAT LEADCAST'S SECURITY METHODS WILL BE SUFFICIENT TO PROTECT ANY LEAD BUYER CONFIDENTIAL INFORMATION OR INFORMATION RELATING TO ITS BIDS OR LEADS OR ANY CONFIDENTIAL INFORMATION OF THIRD PARTIES SUBMITTED BY LEAD BUYER, OR (5) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF INFORMATION OBTAINED THROUGH THE PLATFORM OR OTHERWISE THROUGH THE LEADCAST WEBSITES.
