Website Terms and Conditions and Lead Purchase Agreement
Thank you for visiting Phone Home Leads located at www.phonehomeleads.com, respectively (collectively, the “Site”). The Site is an Internet property of Phone Home Leads. (“PHL,” “we,” “our” or “us”).
The following Website Terms and Conditions and Lead Purchase Agreement (“Terms”) are inclusive of the PHL Privacy Policy (“PHL Privacy Policy”), the PHL’s Privacy Policy (“PHL Privacy Policy,” and the “Privacy Policy”), the FAQs and any and all other applicable PHL operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”). PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY.
1. Scope; Modification of Agreement . The Agreement constitutes the entire and only agreement between Users and PHL with respect to Users’ use of PHL, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to our Users; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and Users should review the Agreement prior to using any Phone Home Leads. By a User’s purchase from PHL, that User hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
2. Requirements; Necessary Equipment. Phone Home Leads are available only to valid legal entities and/or individuals who can enter into legally binding contracts under applicable law. Phone Home Leads are not intended for use by non-valid legal entities and/or individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in the applicable jurisdiction). If a User is not a valid legal entity, if that User is under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in the applicable jurisdiction) and/or if that User is unable to enter into legally binding contracts under applicable law, that User does not have permission to use and/or access Phone Home Leads. Users shall be responsible, at all times, for ensuring that they have an Internet connection, up-to-date Internet browser versions, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access and use the Phone Home Leads.
Phone Home Leads may reject a User’s Form, reject a User’s order and/or terminate a User’s Phone Home Leads account (“Account”) at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (i) PHL believes that such User is in any way in breach of the Agreement; (ii) PHL believes that such User is engaged in any improper conduct in connection with the Phone Home Leads; and/or (ii) PHL believes that such User is, at any time, conducting any unauthorized activity by and through Phone Home Leads.
3. The PHL product.
(a) Compliance with Applicable Law. By accessing and using Phone Home Leads, each User represents and warrants that its use of any and all Leads, its User Content (as defined below) and its use of any and all other PHL will be in strict compliance with all applicable PHL guidelines, as well as all applicable local, state, national, federal and international laws, rules and regulations including, but not limited to, the FTC’s Safeguards Rule (16 CFR Part 314), the Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200) (the “TCPA”), the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq., and laws governing the National Do-Not-Call Registry, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), the HIPAA Privacy Rule, the HIPAA Security Rule, and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”). Without limiting the foregoing, each User represents and warrants that, where such User intends to conduct any telemarketing activities in connection with any Leads, it has the legal authority to download information from the NDNCR using a Subscription Authorization Number (“SAN”).
(b) Disclaimers. Each User acknowledges that PHL utilizes Third Party Sources and collection methods in its Lead compilation processes. The Third Party Sources are solely responsible for the content, accuracy, completeness, appropriateness and/or validity of the Leads, and the legality associated with their collection and dissemination. PHL does not represent or warrant that the Leads and/or other information made available by and through the Platform and/or other Phone Home Leads is accurate, complete or appropriate, or that such Leads were collected in compliance with Applicable Law. PHL makes no representation or warranty that the Leads are collected in a manner that satisfies any applicable legal requirements for use in any specific manner or are fit for any particular purpose. Users should consult with their own legal counsel before initiating any online or offline marketing campaign utilizing the Leads. Without limiting the foregoing, each User hereby expressly acknowledges and agrees that, in the event that any consumer information contained in any Lead provided by and through the Platform includes telephone numbers, each User acknowledges and agrees that PHL makes no claim that any such consumer information was collected from consumers who have provided “prior express written consent” as required under the TCPA and/or Do Not Call List requirements and any applicable rules, regulations or guidelines. As a result, PHL does not make any claim, representation or assertion that User, or any third party, may: (i) call any landline or mobile phone numbers contained within any Lead, without first scrubbing against the National Do-Not-Call-Registry; and/or (ii) call any landline or mobile phone numbers contained within any Lead through the use of an automatic telephone dialing system or pre-recorded or artificial voice message or text message without first separately obtaining prior express written consent from each such consumer that comprises the subject Lead (“Consumer”), as required under the TCPA. Each User hereby expressly acknowledges and agrees that, in the event that any Consumer information contained in any Lead provided by and through the Platform includes e-mail addresses, such consumer information WAS NOT collected from consumers who have “affirmative consent” as required under CAN-SPAM. As a result, PHL does not make any claim, representation or assertion that User, or any third party, may send commercial e-mail messages to any e-mail addresses contained within any Lead, without first separately obtaining affirmative consent from each such subject Consumer, as required under CAN-SPAM.
(c) Platform/Leads/Lead License Period. Subject to the terms and conditions of the Agreement, Users shall not be permitted to search for Leads by and through the Platform. Where a User wishes to purchase a license to the Leads for the applicable Lead License Period, and upon completing the applicable Form associated with the license of Leads (whether via the Site, e-mail, telephone orders or any offline methods made available by PHL),, the: (a) credit card that the User provided on the Form (where selected as its preferred payment method); or (b) the PayPal® account that the User provided (where selected as the preferred payment method) will be charged the applicable fee for the Leads (collectively, “Standard Payment Method”). Where you do not wish to pay for Leads via a credit card or PayPal®, you may contact PHL with your alternative payment request and, where NWMS approves, PHL will send you a purchase order that will enable you to pay by faxed check, wire transfer, direct bank deposit and/or Western Union (collectively, “Alternative Payment Method,” and together with the Active Credit Card, the “Payment Method”). ALL SALES ARE FINAL AND NON-REFUNDABLE.
Users may only use the Leads that they license by and through the Platform for their own personal use (or for the Permitted Sublicense, as defined below) during the Lead License Period which shall be, unless expressly provided for otherwise, three (3) months from the date of purchase. Users may sublicense each Lead one (1) time, to one (1) party (“Sublicensee”) during the Lead License Period (“Permitted Sublicense”); provided, however, that: (i) where User licenses a Lead to a Sublicensee, that User may not also use the Lead in any manner including, without limitation, conducting any marketing efforts in connection with such Lead; (ii) each such Sublicensee must comply with all of the terms and conditions of the Agreement as if such Sublicensee was User; (iii) such Sublicensees may not resell, rent, license, transfer or in any way permit the use of any Lead by any third party; (iv) such Sublicensees may only use the Leads as contemplated hereunder, during the applicable Lead License Period; and (v) User shall remain jointly and severally liable for any and all acts and/or omissions of any Sublicensee. Other than in connection with a Permitted Sublicense as strictly authorized above, Users may not resell, rent, license, transfer or in any way permit the use of the Leads by any third party. PHL shall retain all right, title and interest in and to the
Leads and all intellectual property contained therein. PHL reserves the right, but is not obligated, to monitor Users’ compliance with the terms of the Agreement which may include using a combination of control methods including, without limitation, implantation of seed and/or decoy information/Leads, as applicable. Upon expiration or termination of the Lead License Period, Users shall immediately discontinue any and all use of the Leads and permanently delete or return all copies of licensed Leads except as expressly provided herein. In the event that a User fails to fully comply with the foregoing obligations, that User shall pay to PHL, as liquidated damages and not a penalty, an amount equal to one-twelfth of the total fees charged under this Agreement for each month of such User’s noncompliance. Each User shall certify in writing as to its compliance with its obligations within ten (10) days of PHL’s request. Each User agrees that PHL may, during any ongoing Lead License Period and for a period of one (1) year following the termination of the most recent Lead License Period, audit User for the sole purpose of verifying that such User has complied with the terms of the Agreement. Each User will cooperate with PHL in such audit(s) by providing PHL with access to records and personnel as reasonably necessary for PHL to verify that such User has complied with the terms of the Agreement. Any such audit(s): (A) may be performed by PHL or its third party representatives; (B) shall occur only during normal business hours; and (C) shall, in each instance, be preceded by at least three (3) business days’ advance written notice. PHL will be solely responsible for the costs of such audit(s); provided, however, that User will pay the reasonable costs of such audit(s) and any applicable charges if the audit(s) reveal(s) that such User has not complied with the terms of the Agreement
The fees associated with each User’s purchases will appear on that User’s Payment Method statement through the identifier “Next Wave Marketing Strategies.” All prices displayed on the Platform are quoted in U.S. Dollars, are payable in U.S. Dollars and are valid and effective only in the United States. Failure to use the Leads does not constitute a basis for refusing to pay any of the associated charges. Subject to the conditions set forth herein, each User agrees to be bound by the Billing Provisions of PHL in effect at any given time. Upon reasonable prior written notice to its Users (with an update to the Agreement and/or e-mail sufficing), PHL reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Continued use of any PHL Offerings and/or purchase of Leads after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification.
PHL’s authorization to provide and bill for the Leads is obtained by way of the applicable User’s electronic signature or, where applicable, via physical signature and/or voice affirmation. Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency. PHL’s reliance upon an User’s electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically pre-empt all state laws that recognize only paper and handwritten signatures.
4. Representations. Each User hereby represents and warrants to PHL as follows: (a) the Agreement constitutes such User’s legal, valid and binding obligation which is fully enforceable against such User in accordance with its terms; (b) such User understands and agrees that such User has independently evaluated the desirability of utilizing Phone Home Leads and that such User has not relied on any representation other than those set forth in the Agreement; (c) the execution, delivery and performance by User of the Agreement will not conflict with or violate: (i) any order, judgment or decree applicable to such User; (ii) any provision of such User’s corporate by-laws or certificate of incorporation, if applicable; or (iii) any agreement or other instrument applicable to such User; (d) such User’s performance under the Agreement, such User’s use of Phone Home Leads, the User Content (if applicable), User’s marketing activities associated with the Leads and/or User’s storage and distribution of the Leads will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any Applicable Law; and/or (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; and (e) if applicable, each User will be solely responsible for its User Content and any and all other material, content, products and/or services made available on, or linked to from, same.
5. Proprietary Rights. Phone Home Leads, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by any User or other third party of any part of Phone Home Leads is strictly prohibited. No User or other third party acquires ownership rights in or to any content, document, software, services or other materials viewed by or through Phone Home Leads. The posting of information or material by and through Phone Home Leads does not constitute a waiver of any right in or to such information and/or materials.
6. Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of Phone Home Leads is a violation of criminal and civil law and PHL will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
7. Limitation of Liability. EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT PHL SHALL NOT BE LIABLE TO THAT USER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PHL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE PHONE HOME LEADS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE NWMS OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS AND ANY CONSUMERS, THIRD PARTY SOURCES AND/OR OTHER THIRD PARTIES; (D) ANY MATTER RELATING TO ANY USER CONTENT; (E) ANY CLAIM THAT THE LEADS DO NOT COMPLY WITH ANY FEDERAL AND/OR STATE E-MAIL AND/OR TELEMARKETING LAWS INCLUDING, WITHOUT LIMITATION, THE TCPA, ATSR AND/OR CAN-SPAM; (F) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER’S REGISTRATION DATA; AND (G) ANY OTHER MATTER RELATING TO PHONE HOME LEADS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER HEREBY RELEASES PHL FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF PHL TO ANY USER UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF PHONE HOME LEADS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME , MAY BE BROUGHT BY ANY USER OR PHL MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER AND NWMS. ACCESS TO PHONE HOME LEADS WOULD NOT BE PROVIDED TO ANY USERS WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF NWMS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Editing, Deleting and Modification. We reserve the right in our sole discretion to edit and/or delete any documents, information or other content appearing on the Site.
9. Use of Registration Data. All material submitted by Users through or in association with Phone Home Leads, including, without limitation, the Registration Data, shall be subject to the Privacy Policy.
10. Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in Nixa, Missouri and shall be governed by and construed in accordance with the laws of the State of Missouri (without regard to conflict of law principles). Should a dispute arise concerning Phone Home Leads any dispute between a User and any Consumer, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) each User agrees to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice. We may choose to provide petitioning Users with a final written settlement offer after receiving such User’s Initial Dispute Notice (“Final Settlement Offer”). If we provide a petitioning User with a Final Settlement Offer and that User does not accept it, or we cannot otherwise satisfactorily resolve that User’s dispute and that User wishes to proceed, that User must submit its dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in that User’s county of residence, by filing a separate Demand for Arbitration. For claims of Ten Thousand Dollars ($10,000.00) or less, a User can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards a User relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if that User retained an attorney to represent it in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that such User’s attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from any User unless the arbitrator determines that such User’s claim was frivolous.
To the extent permitted by law, each User agrees that it will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that it may have against PHL and/or its employees, officers, directors, members, representatives and/or assigns. Each User agrees to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. Each User agrees to pay the attorney’s fees and court costs that PHL incurs in seeking such relief. This provision preventing Users from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any User’s rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. Any User may opt-out of these dispute resolution provisions by providing written notice of it decision within thirty (30) days of the date that it first accesses the Site.
11. Miscellaneous. To the extent that anything in or associated with Phone Home Leads is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Our failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. PHL may assign its rights and obligations under the Agreement, in whole or in part, to any party at any time without any notice to you. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
12. Contact Us. If any User has any questions about the Agreement, Phone Home Leads or the practices of PHL, that User can email us as at: rob@phonehomeleads.com ; or call us at: 1-870-692-0400.