Website Terms and Conditions and Lead Purchase Agreement
Thank you for visiting the Aged Lead Store™ and Next Wave Marketing Strategies websites located at www.agedleadstore.com and www.agedleadstore.com, respectively (collectively, the “Site”). The Site is an Internet property of Next Wave Marketing Strategies, Inc. (“NWMS,” “we,” “our” or “us”). The Site provides end-user visitors (“Visitors”) with: (a) access to certain information relating to the NWMS Offerings (as defined below), including various e-books and downloadable periodicals, as well as other text, images, graphics, blog posts and other material made available by NWMS (collectively, “NWMS Content”); (b) a means to access the searchable database and associated services made available by NWMS (collectively, “Platform”), which enable individuals and/or entities (“Purchasers,” and together with Visitors, “Users”) to: (i) search for consumer data records grouped by industry/type (collectively “Leads”), as compiled by NWMS from various third party sources (collectively, “Third Party Sources”), using available search criteria/filters; and (ii) where applicable, purchase , via the Site, e-mail, telephone orders or any offline methods made available by NWMS, a license to utilize such Leads for a period of three (3) months, or such other period as designated by NWMS from time-to-time (“Lead License Period”); (c) the ability to register to receive the NWMS e-mail newsletter (“Newsletter”); and/or (d) access to NWMS social media pages/accounts on third party social media websites, such as Facebook®, Google+®, LinkedIn®, Twitter® and YouTube® (collectively, “Social Media Pages,” and together with the Site, NWMS Content, Platform, Leads and Newsletter, the “NWMS Offerings”).
Facebook® is a registered trademark of Facebook, Inc. (“Facebook”). Google+® and YouTube® are registered trademarks of Google, Inc. (“Google”). LinkedIn® is a registered trademark of LinkedIn Corporation (“LinkedIn”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Please be advised that NWMS is not in any way affiliated with Facebook, Google, LinkedIn or Twitter, nor are the Site Offerings endorsed, administered or sponsored by any of the foregoing entities.
1. Scope; Modification of Agreement . The Agreement constitutes the entire and only agreement between Users and NWMS with respect to Users’ use of the NWMS Offerings, 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 NWMS Offerings. By a User’s continued use of any of the NWMS Offerings, 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. The NWMS Offerings are available only to valid legal entities and/or individuals who can enter into legally binding contracts under applicable law. The NWMS Offerings 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 the NWMS Offerings. 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 NWMS Offerings.
3. Registration; Account Rejection and/or Termination. In order to utilize certain of the NWMS Offerings, including Users that wish to purchase Leads and/or sign up for the Newsletter, Users may be required to submit a registration form on the Site, or otherwise via e-mail, telephone orders or any offline methods made available by NWMS(each, a “Form”). The information that Users must supply on the applicable Form when registering, or later making a purchase, may include, without limitation: (a) the User’s full name; (b) the User’s username and password; (c) the User’s e-mail address (including the User’s e-mail address associated with its/her/his PayPal® account where purchasing a license to certain Leads with a PayPal® account); (d) the User’s company’s name; (e) the User’s full mailing address; (f) the User’s credit card information, including billing address (where purchasing a license to certain Leads with a credit card account); (g) the User’s mobile telephone number and mobile carrier; (h) the User’s alternate telephone number; (i) how the User located the Site; (j) what Lead types the User is interested in; and/or (k) any other information requested by NWMS on the Form (collectively, “Registration Data”). Each User agrees to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion.
PayPal® is a registered trademark of PayPal, Inc. Please be advised that NWMS is not in any way affiliated with PayPal, Inc., and neither NWMS nor the NWMS Offerings are endorsed or sponsored by PayPal, Inc.
NWMS may reject a User’s Form, reject a User’s attempted registration and/or terminate a User’s NWMS Offerings account (“Account”) at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (i) NWMS believes that such User is in any way in breach of the Agreement; (ii) NWMS believes that such User is engaged in any improper conduct in connection with the NWMS Offerings; and/or (ii) NWMS believes that such User is, at any time, conducting any unauthorized commercial activity by and through the NWMS Offerings.
As part of the registration process, Users will be provided with, or must select, a username and/or password. If the username/password that a User requests is not available, that User will be asked to supply another username. If NWMS provides a User with a username/password, that User can change that username and/or password, or the one that the User selected during registration, at any time through that User’s Account settings. Each User agrees to notify NWMS of any known or suspected unauthorized use(s) of its Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of its username/password. Each User shall be responsible for maintaining the confidentiality of its username/password and Account. Each User agrees to accept responsibility for all activities that occur through use of its username/password and Account, including any charges incurred therethrough.
4. The NWMS Offerings.
(a) Compliance with Applicable Law. By accessing and using the NWMS Offerings, 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 NWMS Offerings will be in strict compliance with all applicable NWMS guidelines, as well as all applicable local, state, national, federal and international laws, rules and regulations including, but not limited to, the Gramm-Leach Bliley Act of 1999 (15 U.S.C. §§ 6801 et seq.) and 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 NWMS utilizes multiple 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. NWMS does not represent or warrant that the Leads and/or other information made available by and through the Platform and/or other NWMS Offerings is accurate, complete or appropriate, or that such Leads were collected in compliance with Applicable Law. NWMS 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, e ach 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 NWMS 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, NWMS 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 dialling 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, NWMS 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 be permitted to search for Leads by and through the Platform using various filters/search criteria made available by NWMS. 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 NWMS),, 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 NWMS with your alternative payment request and, where NWMS approves, NWMS 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. NWMS shall retain all right, title and interest in and to the
Leads and all intellectual property contained therein. NWMS 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 NWMS, 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 NWMS’s request. Each User agrees that NWMS 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 NWMS in such audit(s) by providing NWMS with access to records and personnel as reasonably necessary for NWMS to verify that such User has complied with the terms of the Agreement. Any such audit(s): (A) may be performed by NWMS 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. NWMS 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 NWMS 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), NWMS reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Continued use of any NWMS 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.
NWMS’ 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. NWMS’ 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.
(d) Suppression Lists. From time-to-time, NWMS may deliver to Users a suppression list containing: (i) e-mail addresses of Consumers contained in the subject Leads that have expressed that they do not wish to receive subsequent e-mail marketing; and (ii) telephone numbers of Consumers contained in the subject Leads that have expressed that they do not wish to receive subsequent telemarketing and/or text message marketing (collectively, the “Suppression List(s)”). Each User agrees that it will: (A) check such Suppression Lists on a daily basis; and (B) process all unsubscribe requests, no matter the source, within five (5) days of its receipt of such requests and maintain electronic records evidencing the date and time of removal of such e-mail address(es) and/or telephone number(s), as applicable, from the Leads made available to User hereunder. Each User hereby expressly agrees not to use the Suppression List(s) for purposes of e-mail marketing, telemarketing and/or text message marketing or provide the Suppression List(s) to any third party for said purpose(s).
(e) NWMS Content. Subject to the terms and conditions of the Agreement, Users that possess the requisite technology shall have the opportunity to view, download and/or interact with all or some of the NWMS Content made available by and through the Site and/or other NWMS Offerings. The NWMS Content is compiled, distributed and displayed by NWMS, as well as third-party content providers (collectively, “Third-Party Providers”). NWMS does not control the NWMS Content provided by Third-Party Providers that is made available by and through the NWMS Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness and/or usefulness of such NWMS Content. The NWMS Content should not necessarily be relied upon. NWMS does not represent or warrant that the NWMS Content and other information posted by and through the NWMS Offerings is accurate, complete, up-to-date or appropriate. Users understand and agree that NWMS will not be responsible for, and NWMS undertakes no responsibility to monitor or otherwise police, NWMS Content provided by Third-Party Providers. Users agree that NWMS shall have no obligation and incur no liability to such Users in connection with any NWMS Content. Users may find certain NWMS Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the NWMS Content.
(f) User Content. Each User agrees that it is solely responsible for the marketing material and/or other content, material, communications, feedback, products, services and/or other information and merchandise that is made available, promoted, marketed, pitched, published, transmitted and/or posted to the subject Consumers contained in the Leads (and any website linked to or associated with same) (collectively, “User Content”). NWMS undertakes no responsibility to monitor or otherwise police the User Content. Each User and third party agrees that NWMS shall: (i) have no obligations and incur no liabilities to such party in connection with any such User Content; and (ii) not be liable to any party for any claim in connection with the User Content.
(g) Social Media Pages. The Site contains links to the various NWMS Social Media Pages. The Social Media Pages are hosted and made available on third party websites (“Social Media Websites”) by third party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that NWMS shall not be liable to you or any third party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites .
5. Representations and Warranties. Each User hereby represents and warrants to NWMS 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 the NWMS Offerings and that such User has not relied on any representation and/or warranty 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 the NWMS Offerings, 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.
6. Indemnification. Each User agrees to indemnify, defend and hold NWMS, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, contractors, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) the User Content and any and all other information, products and/or services posted, made available and/or linked to in connection with each User’s use of the Leads or otherwise; (b) any dispute between User and any Consumer, Third Party Source or other third party; (c) User’s breach of the Agreement and/or any representation or warranty contained herein; (d) any allegation that User (or any User Content) has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (e) any claim that NWMS is obligated to pay any taxes in connection with such User’s use of the NWMS Offerings; (f) any claim or allegation that User’s use of the NWMS Offerings has violated any Applicable Law; and/or (g) User’s use of the NWMS Offerings in any manner whatsoever.
7. License Grant. Each User is granted a non-exclusive, non-transferable, revocable and limited license to access and use the NWMS Offerings. NWMS may terminate this license at any time for any reason. Unless otherwise expressly authorized by NWMS, Visitors and Users may only use the NWMS Offerings for their own personal, non-commercial use. No part of the NWMS Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No User or other third party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the NWMS Offerings except as expressly permitted by NWMS. No User or other third party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the NWMS Offerings, or any portion thereof. No User or other third party may create any “derivative works” by altering any aspect of the NWMS Offerings. No User or other third party may use the NWMS Offerings in conjunction with any other third-party content. No User or other third party may exploit any aspect of the NWMS Offerings for any commercial purposes not expressly permitted by NWMS. Each User further agrees to indemnify and hold NWMS harmless for that User’s failure to comply with this Section 7. NWMS reserves any rights not explicitly granted in the Agreement.
8. Proprietary Rights. The NWMS Offerings, 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 the NWMS Offerings 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 the NWMS Offerings. The posting of information or material by and through the NWMS Offerings does not constitute a waiver of any right in or to such information and/or materials.
9. Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the NWMS Offerings is a violation of criminal and civil law and NWMS 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.
10. Disclaimer of Warranties. THE NWMS OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, NWMS MAKES NO WARRANTY THAT THE NWMS OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME: (A) WILL MEET ANY USER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL HAVE BEEN SCRUBBED AGAINST THE NATIONAL DO NOT CALL LIST AND/OR WILL BE COMPLIANT WITH THE TCPA, ATSR, CAN-SPAM OR ANY OTHER APPLICABLE LAW; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE NWMS OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NWMS WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET AND/OR MOBILE CONNECTION ASSOCIATED WITH THE NWMS OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM NWMS OR OTHERWISE THROUGH OR FROM THE NWMS OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
11. Limitation of Liability. EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT NWMS 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 NWMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE NWMS OFFERINGS 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 THE NWMS OFFERINGS 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 NWMS 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 NWMS TO ANY USER UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE NWMS OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND THROUGH SAME , MAY BE BROUGHT BY ANY USER OR NWMS 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 THE NWMS OFFERINGS 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.
12. Third Party Websites. The NWMS Offerings contain links to other websites on the Internet that are owned and operated by third parties including, without limitation, the Social Media Sites. NWMS does not control the information, products or services available on or through these third party websites. The inclusion of any link does not imply endorsement by NWMS of the applicable website or any association with the website’s operators. Because NWMS has no control over such websites and resources, each User agrees that NWMS is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any User’s data privacy by third parties.
13. 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.
15. Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Should a dispute arise concerning the NWMS Offerings,any 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 which can be found Here . 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, which is available Here . 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 NWMS 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 NWMS 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.
16. Miscellaneous. To the extent that anything in or associated with the NWMS Offerings 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. NWMS 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.
17. Contact Us. If any User has any questions about the Agreement, NWMS Offerings or the practices of NWMS, that User can email us as at: firstname.lastname@example.org; or call us at: 1-888-238-9283.