LEAD COMMERCE SOFTWARE SERVICE TERMS
PLEASE READ THE FOLLOWING CAREFULLY BEFORE USING LEAD COMMERCE (THE "SERVICE").
By creating a trial by pressing the "Create Your Trial" button you expressly acknowledge and agree, on your own behalf as an individual, and on behalf of your employer or another entity which has not yet done so (collectively "You" or "Your"), that You are entering into a binding legal agreement with Lead Commerce LLC ("LEAD COMMERCE"), are over 18 years of age, have full authority to bind such employer or other entity, and have understood and agree to comply with the terms below ("Terms"). You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
1. Content Entry. The Service includes a Data Management System. "Data" means any information that You may generate, provide, store, post, transmit or upload in connection with the Service, such as data files, written text, software, music, graphics, stylized logos, photographs, images, sounds, videos, messages and similar materials. As between LEAD COMMERCE and You, You retain title to the Data. You agree that You shall not include Data that is or gives rise to, and LEAD COMMERCE may (but is not required to) refuse or remove Data that it determines in its sole discretion to be, (a) unlawful, offensive, threatening, harmful, libelous, defamatory, pornographic, gambling-related, obscene, racist, infringing or otherwise objectionable; (b) not wholly-owned by or validly licensed to You; (c) a violation of a third party's intellectual property rights; (d) a breach of these Terms; and/or (e) a violation of the terms and conditions, as modified from time to time, of LEAD COMMERCE's vendors who provide products, services, and other resources to enable the Service ("Third-Party Vendor"). Data must include Your name and address, and Your contact information (telephone number, email address) to which user questions, complaints or claims should be directed.
2. Submission. Once You submit required Data to LEAD COMMERCE, You (a) authorize and appoint LEAD COMMERCE to integrate the Data with its proprietary solution to create order management software and an ecommerce website ("Site"); (b) will provide LEAD COMMERCE with all information including modified Data that it requests in connection with such integration; (c) grant LEAD COMMERCE the right to distribute or otherwise make the Site available in its sole discretion and acknowledge that LEAD COMMERCE may at any time cease to offer, or change or enforce terms that govern, and could require modification or affect the continued availability of, the Site.
3. AUP. You acknowledge that You are familiar, and will at all times comply and cause users to comply, with any applicable LEAD COMMERCE acceptable use policy and any terms and conditions of Third-Party Vendors as may be applicable to the Site, which LEAD COMMERCE will make available to You upon request.
4. Site and Content. You (and not LEAD COMMERCE or a Third-Party Vendor) are solely responsible for the Site and Content, including but not limited to product warranties, product claims, maintenance and support services, other third-party claims including but not limited to those related to infringement of a party's intellectual property rights, compliance with any applicable law or regulation including but not limited to those relating to privacy and data collection, and ensuring that users are neither restricted parties according to any U.S. government list nor located in a country that is subject to a U.S. Government embargo or "terrorist supporting" designation. For a claim related to any of the aforementioned, You (and not LEAD COMMERCE or a Third-Party Vendor) will be solely responsible for its investigation, defense, settlement, and discharge.
5. Other Requirements. You acknowledge and agree that (a) information transmitted or gathered in connection with the Service or the Site may be used in an aggregated and anonymized manner; (b) Third-Party Vendors and their affiliates are third party beneficiaries of these Terms, and that such entities will have (and be deemed to have accepted) the right to enforce them against You; (c) as between You and LEAD COMMERCE, You are solely responsible for any errors, issues, or downtime caused by or attributable to Your (or Your agents) customization of the Site; (d) by virtue of their ability to access the Site, users may be subject to terms and conditions similar to these Terms; (e) Your Site or other terms, if any, generally binding users, shall incorporate and adapt (to as great an extent as possible), and be at least as restrictive and protective of LEAD COMMERCE and Third-Party Vendors, as each of the provisions identified in this Section 5, and each of LEAD COMMERCE and Third-Party Vendors and their affiliates shall be third-party beneficiaries to such terms, which shall indicate that such entities will have (and be deemed to have accepted) the right to enforce them against users; and (f) You shall not include, modify, or apply any terms, limitations, or disclaimers in any agreements with users that contradict or supersede either these Terms or any minimum user terms that LEAD COMMERCE incorporates as part of the Site.
6. eCommerce Order Management Software Usage. You acknowledge and agree to use the Service solely for the purpose of running an ecommerce website and order management software application and hosting and serving web pages as viewed through a web browser and the Hypertext Markup Language (HTML) protocol or other equivalent technology, and not to use the Service as an online storage space or inconsistent with Your data plan. You are solely responsible for backing-up and archiving any of Your Content or other data that may be stored on LEAD COMMERCE's (or its third party service provider's) servers. Under no circumstances will LEAD COMMERCE be liable for damages of any kind for any loss of Your Content or data.
7. Security. You are solely responsible for maintaining the confidentiality of Your password and account information and ensuring the security, confidentiality and integrity of Content that is transmitted through or stored on LEAD COMMERCE's (or its third party service provider's) servers.
8. Support. For such time as You are current in your payment of any fees hereunder, LEAD COMMERCE will provide standard support services Monday through Friday from 8AM PST to 5PM PST.
8.1 Network Uptime
Lead Commerce guarantees that its network will be available 99.99% of the time in a given month, excluding scheduled maintenance. Network uptime includes functioning of all network infrastructure including routers, switches and cabling, but does not include services or software running on your server. Network downtime exists when a particular customer is unable to transmit and receive data and is measured from the time the trouble ticket is opened.
Lead Commerce guarantees that the critical infrastructure systems will be available 99.99% of the time in a given month, excluding scheduled maintenance. Critical infrastructure includes functioning of all power and HVAC infrastructure including UPSs, PDUs and cabling, but does not include the power supplies on customers' servers. Infrastructure downtime exists when a particular server is shut down due to power or heat problems and is measured from the time the trouble ticket is opened to the time the problem is resolved and the server is powered back on.
Lead Commerce guarantees the functioning of all hardware components and will replace any failed component at no cost to the customer. Hardware is defined as the Processor(s), RAM, hard disk(s), motherboard, NIC card and other related hardware included with the server. This guarantee excludes the time required to rebuild a RAID array and the reload of certain operating systems and applications.
9. Title and Protection. Except as expressly set forth herein, LEAD COMMERCE (or its third party providers) retain all right, title, and interest to all portions of the Service, associated software, and any modifications, enhancements, or derivative works thereof.
10. Fees and Payments.
10.1 The provision of the Service and availability of the Site, and Your use thereof, is subject to Your timely payment of applicable set-up fees, monthly or annual subscription fees (beginning once the Service password is provided).
10.2 Upon payment of the applicable fees, You will receive an activation password which will remain valid subject to Your payment when due of the applicable subscription fee. You agree to keep the activation password secure and will not disclose it to any third party.
10.3 LEAD COMMERCE reserves the right to impose or change fees immediately by so posting on the LEAD COMMERCE website at www.leadcommerce.com.
10.4 You acknowledge that You will be charged an additional fee if You exceed the bandwidth or storage capacity of Your plan level.
10.5 Fees are not refundable, including in the event of You choosing to downgrade Your plan level or terminate service, and are exclusive of all taxes, levies, or duties, which are Your responsibility.
10.6 LEAD COMMERCE will charge applicable fees to the credit card account that You authorize, and LEAD COMMERCE will continue to charge that card (or any replacement card) for Your subscription including renewals. If You continue to receive the Service but, for some reason, payment is not received from Your card issuer, You agree to promptly pay all amounts due upon demand.
11. Free Trial Period. LEAD COMMERCE currently offers a free, no-obligations fifteen (15) day trial period of the Service ("Trial Period"). You acknowledge that the Trial Period will commence the moment you complete the registration process and will conclude fifteen (15) days later, or sooner if (a) You upgrade Your account by beginning to pay the applicable subscription fees, or (b) Your use of the Service is discontinued or terminated in accordance with Section 12.1. You acknowledge and agree that during the Trial Period, LEAD COMMERCE (i) does not make any commitments in connection with the Service or offer support services; and (ii) may send You, subject to Your opting out, communications and other notices about the Service to Your email address. LEAD COMMERCE reserves the right to modify, cancel and/or limit this Trial Period offer at any time.
12.1 You may discontinue Your use of the Service at any time by logging into the Lead Commerce software and selecting the Cancel Subscription button located in the Licensing section of the Back Office. Emailing or contacting individuals or departments at Lead Commerce, regarding the cancelation of your Service, does not constitute the termination of your Service. LEAD COMMERCE may terminate or suspend Your use of the Service at any time if You breach these Terms (including any failure to pay the applicable fees on time). LEAD COMMERCE reserves the right to terminate or refuse service to anyone for any reason at any time.
12.2 Upon any discontinuation or termination of Your use of the Service, You will lose all access to the Service and Site and any Content and other data in connection thereto. LEAD COMMERCE reserves the right to (a) deactivate the Site at any time following the effective date of termination; and/or (b) permanently delete from its (or its third party service provider's) servers any Content and other data that may be contained in Your account at any time following a period of forty five (45) days from the effective date of termination. LEAD COMMERCE does not accept any liability for any deactivation of the Site or deleted Content or other data.
12.3 The provisions of sections 3 to 5, 9, 12 to 15 and 19 shall survive termination.
13. Indemnity. You agree to defend, indemnify and hold harmless LEAD COMMERCE and its affiliates and their respective officers, directors, agents, consultants and employees from any claims, damages, liabilities, costs, and expenses (as incurred, including attorney's fees) arising from (a) Your use of the Service or the Site; (b) the use by any third party of the Site; and (c) Your failure to comply with these Terms.
14. Warranty. Except for as expressly set forth herein, the Service is provided on an "as is" and "as available" basis, and without warranties of any kind either express or implied. You assume all responsibility for the selection of the Service to achieve Your intended results. LEAD COMMERCE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, NONINFRINGEMENT AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LEAD COMMERCE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS WILL BE CORRECTED. LEAD COMMERCE DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OR THE USE OF THE SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, RISK OF INJURY TO YOUR OR ANY USER'S COMPUTER, NETWORK, MARKET, OR CUSTOMER BASE OR COMMERCIAL ADVANTAGE. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
15. Limitation of Liability. Except to the extent prohibited by applicable law, in no event shall LEAD COMMERCE or Third-Party Vendor, or their affiliates, subsidiaries, or third party licensors, be liable for any damages whatsoever (including without limitation, consequential, indirect, special, punitive, or incidental damages, or damages for loss of business profits, business interruption, loss or corruption of data, or other pecuniary loss) arising out of the use or inability to use the Service, even if LEAD COMMERCE has been advised of the possibility of such damages. Except to the extent prohibited by applicable law, in no event shall the liability of LEAD COMMERCE, its affiliates, subsidiaries, and its third party licensors, if any, for damages under these Terms or arising from use of the Service exceed the amount paid by You to LEAD COMMERCE for the Service in the six (6) months immediately preceding the claim.
16. Publicity and Branding. You agree that LEAD COMMERCE may (a) publicize Your name, the fact of the Site and Your use of the Service; and (b) brand the Site with a "powered by LEAD COMMERCE" or similar legend and/or copyright notice.
17. Force Majeure. LEAD COMMERCE shall not be responsible for failures of its obligations under this Agreement to the extent that such failure is due to causes beyond it's control including, but not limited to, acts of God, acts of war, governmental acts, fire, sabotage, strikes, failure of the Internet (not resulting from the actions or inactions of LEAD COMMERCE), strikes or labor difficulties, severe weather conditions, and/or delay in, or of, transportation, suppliers or subcontractors. If the Service is unavailable for a period of thirty (30) consecutive days as a result of a continuing force majeure event, You may cancel Your subscription to the Service, but there shall be no liability on the part of LEAD COMMERCE.
19. General. These Terms represent the complete agreement concerning the Service between You and LEAD COMMERCE and supersede all prior agreements and representations related to the subject matter hereof. These Terms shall be deemed agreed in and governed by the laws of the State of California, excluding choice of law principles. All proceedings shall be conducted in English. You agree that venue for all proceedings shall be San Diego County, California, provided that venue shall also be proper in any court of competent jurisdiction where LEAD COMMERCE seeks (a) injunctive relief against You to enforce the Terms; and/or (b) to join You in a suit brought by a third party related to the Service or the Site. The United Nations Convention for the International Sale of Goods shall not apply. Section headings are provided for convenience only and have no substantive effect on construction. Except for Your obligation to pay LEAD COMMERCE, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Notice shall be deemed effective when received by the designated fax, email, or postal address. If any provision is held to be unenforceable, the Terms shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party's right to exercise such right or any other right in the future.
20. Modifications. LEAD COMMERCE reserves the right to modify these Terms at any time by publishing the revised terms on the LEAD COMMERCE website at www.leadcommerce.com. The revised Terms shall become effective within ten (10) days thereof.
Lead Commerce LLC ACCEPTABLE USAGE POLICY
This Acceptable Use Policy ("AUP") governs the use of products and services provided by Lead Commerce LLC ("LEAD COMMERCE"), including LEAD COMMERCE's applications, platforms, the website www.leadcommerce.com, and other websites operated by LEAD COMMERCE, and any associated physical/virtual/cloud-based infrastructure (collectively, the "LEAD COMMERCE Service").
Each user of the LEAD COMMERCE Service must, and shall cause its customers, employees, agents, or members to, comply with this AUP, and shall remain liable for any breach or violation of this AUP attributable to it or such third parties. USE OF THE LEAD COMMERCE SERVICE CONSTITUTES ACCEPTANCE OF THIS AUP.
1. Abuse. The LEAD COMMERCE Service may be used only for lawful purposes and pursuant to this AUP. The LEAD COMMERCE Service may not be used to engage in or promote illegal, abusive, or irresponsible behavior, including: (a) unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; (b) monitoring data or traffic on any network or system without the express authorization of the owner of the system or network; (c) interference with service to any user of the LEAD COMMERCE Service or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; (d) use of an Internet account or computer without the owner's authorization; (e) collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting); (e) collecting or using information without the consent of the owner of the information; (f) use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting; (g) use of the LEAD COMMERCE Service to distribute software that covertly gathers information about a user or covertly transmits information about the user; (h) use of the LEAD COMMERCE Service for distribution of advertisement delivery software unless the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and the software is easily removable by use of standard tools for such purpose included on major operating systems (such as Microsoft's "ad/remove" tool); or (i) any conduct that is likely to result in retaliation against LEAD COMMERCE, or LEAD COMMERCE's employees, officers, agents, other LEAD COMMERCE Service users, or third party vendors, including engaging in behavior that results in any server being the target of a denial of service attack.
2. Bulk Email. The LEAD COMMERCE Service may not be used to send bulk mail, subject to the restrictions in this AUP.
3. Mail Requirements.
3.1. Use of the LEAD COMMERCE Service must comply with any law, regulation, ordinance, court order or other legal process governing bulk or commercial email. At a minimum, use of the LEAD COMMERCE Service must comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) and/or EU Directive 2002/58/EC, as applicable.
3.3. This AUP applies to messages sent using the LEAD COMMERCE Service and to messages sent that directly or indirectly refer the recipient to a site or email address that is hosted via the LEAD COMMERCE Service. A third-party email service that does not practice similar procedures for all of its customers may not be employed. These requirements apply to distribution lists without regard to whether prepared by third parties.
3.4. LEAD COMMERCE may test and otherwise monitor compliance with this AUP and may block the transmission of any email that violates the terms set forth herein. LEAD COMMERCE may, at its discretion, require users of the LEAD COMMERCE Service to seek advance approval for bulk and commercial email, which approval will not be granted unless said user can demonstrate that all of the requirements stated herein will be met. All references in this Section 3.4 to LEAD COMMERCE shall also include a LEAD COMMERCE vendor.
4. Vulnerability Testing. The LEAD COMMERCE Service may not be used to probe, scan, penetrate or test the vulnerability of the LEAD COMMERCE Service, or any component thereof, or to breach LEAD COMMERCE's security or authentication measures, whether by passive or intrusive techniques, without LEAD COMMERCE's express written consent. All references in this Section 4 to LEAD COMMERCE shall also include a LEAD COMMERCE vendor.
5. Newsgroup, Chat Forums, Other Networks. To the extent that the LEAD COMMERCE Service is used to make postings to any bulletin board, chat group or other forum, , such posting must comply with any applicable rules and conventions including, for example, the posting of off-topic commercial messages, or mass postings to multiple forums.
6. Prohibited Content. The LEAD COMMERCE Service may not be used to post, publish, transmit, distribute, or store (temporarily or permanently) any content (including but not limited to written media, audio works, video, Web content, email, bulletin board postings, chat, tweets, and any other type of posting or transmission that relies on the Internet) that: (a) constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts; (b) is excessively violent, incites violence, threatens violence, or contains harassing content or discriminatory or hate speech; (c) is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes; (d) is defamatory or violates a person's privacy; (e) creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement; (f) improperly exposes trade secrets or other confidential or proprietary information of another person or organization; (g) is intended to assist others in defeating technical copyright protections; (h) infringes on or breaches the copyright, trade or service mark, patent, or other property right of any other person or organization; (i) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (j) is otherwise illegal or solicits conduct that is illegal under any law, regulation, ordinance, court order or other legal process that is applicable to user or LEAD COMMERCE; or (k) is otherwise malicious, fraudulent, or may result in retaliation against LEAD COMMERCE by offended viewers or recipients, or is intended to harass or threaten.
7. Live Events. The LEAD COMMERCE Service may not be used to stream live sex acts of any kind, even if the content would otherwise comply with this AUP. LEAD COMMERCE may prohibit the streaming of other live events where it believes that the event may violate the provisions of Section 6 above.
8. Copyrighted Material. The LEAD COMMERCE Service may not be used to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law, unless expressly authorized by the copyright owner or as otherwise permitted by established copyright law.
9. Shared Systems. The LEAD COMMERCE Service may not be used in a way that unnecessarily interferes with the normal operation of the LEAD COMMERCE Service or that consumes a disproportionate share of the resources of the LEAD COMMERCE Service, or any component thereof.
10.1. This AUP does not obligate LEAD COMMERCE to monitor or review, and LEAD COMMERCE hereby expressly disclaims any liability for, data or content of any type that may be transmitted through or stored on, temporarily or permanently, the LEAD COMMERCE Service.
10.2. LEAD COMMERCE (or its vendors) may quarantine or delete any data stored on the LEAD COMMERCE Service that (i) breaches the provisions of this AUP; (ii) is infected with a virus; or (iii) is otherwise corrupted, and has the potential to infect or corrupt the system or other data that is stored on the same system.
10.3. LEAD COMMERCE vendors and their affiliates are third party beneficiaries of the terms of this AUP and such entities will have (and be deemed to have accepted) the right to enforce them against users in breach;
11. Restricted Parties. The LEAD COMMERCE Service may not be used by any person or entity that is (i) listed on any U.S. Government list of prohibited or restricted parties; or (ii) is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country.
12. Reporting of Violations. Users of the LEAD COMMERCE Service must promptly notify LEAD COMMERCE upon becoming aware of any violation (whether by it or any third party) of this AUP.
13. Changes to this AUP. LEAD COMMERCE reserves the right to amend or modify this AUP from time to time, and use of the LEAD COMMERCE Service after changes to the AUP are posted on the LEAD COMMERCE website www.leadcommerce.com will constitute acceptance of any such amendments or modifications.