TERMS OF SERVICE | LEADBUILDERS CHAT SERVICES
LeadBuilders Live Web Chat Services (the "Services") are services operated by LeadBuilders, LLP ("LeadBuilders" or "Company") of 707 W 700 S - Ste 201 Woods Cross, UT 84087 USA. This Agreement, which governs the terms and conditions of your use of the LeadBuilders.net, is between you ("You," "User," or "Client"), as an authorized user of the Services, and the Company. Client agrees that the Services will be used only as provided in such terms and conditions for legitimate business purposes.
2. TERM; AUTOMATIC EXTENSION; TERMINATION or SERVICE DOWNGRADE. For LeadBuilders Services, the Initial Term is one month. Service Downgrades or Terminations do require a 30 day written notice as specified below. Unless properly terminated or downgraded, this Agreement will be automatically renewed and extended for successive periods equal to the one month (each, a "Renewal Term") until terminated, as provided herein, by either Client or LeadBulders. Client may terminate or downgrade Services upon expiration of the Initial Term or any Renewal Term by giving written notice of termination / downgrade 30 days prior to the end of the existing Term. Once a written notice of termination / downgrade has been received, Service will terminate / downgrade on the last day of Client's following complete recurring billing cycle. No prorated refunds shall apply and Client is still liable for any and all overage charges if applicable during final term of agreement. Client's written notice to terminate the Agreement must be in writing, and must be sent by either (a) email addressed to email@example.com, or (b) by certified mail, return receipt requested, sent to LeadBuilders.net, attn.: Contract Terminations, 707 W 700 S - Ste 201 Woods Cross, UT 84087 USA. LeadBuilder's written notice to terminate the Agreement shall be sent by either (a) email to Client's email address on record with LeadBuilders, or (b) by first class mail to Client's last known address on record with LeadBuilders. Upon termination of the Agreement for whatever reason, it is the Client's responsibility to modify their website to remove the LeadBuilders HTML code.
The standard fee during any extension period shall be equal to the then current standard fee for the User's services.
3. MODIFICATIONS TO THE SERVICE. The Company reserves the right to modify or discontinue all or part of the Service, temporarily or permanently, with or without notice to User, and is not obligated to support or update the Service. The amended Terms shall be effective immediately after they are posted on LeadBuilders website, www.LeadBuilders.net. User's continued use of the Service after the posting of the amended Terms on the Site constitutes User's affirmative: (a) acknowledgment of the Terms and its modifications; and (b) agreement to abide and be bound by the Terms, as amended. User acknowledges/agrees that the Company shall not be liable to User or any third party in event that the Company exercises its right to modify/discontinue all/part of the Service.
4. MODIFICATION OF USER RATES. The Company reserves the right, in its sole discretion, to change User pricing upon thirty (30) days' notice. Notwithstanding the foregoing, if a User utilizes greater than the number of chats or chat characters included in User's monthly plan, the Company reserves the right to immediately charge the standard overage rates outlined in the signup and pricing pages of the LeadBuilders.net pages.
5. CHARGES. By electing to purchase subscription-based services, You warrant that all information You submit is true, valid and accurate (including without limitation Your credit card number and expiration date) and You agree to pay all subscription and additional usage fees You incur, plus all applicable taxes.
a. Payment of Your account balance and other applicable charges is due monthly and must be made by the valid credit card designated by You. You must promptly notify the Company of changes to: (a) the account number or expiration date of Your designated card; (b) Your billing address; or (c) cancellation, theft or loss of Your designated card. Any payment received after the due date will be assessed a $50 late payment fee. All billing of applicable subscription charges is starting at time of sign up.
b. If payment for Your account is not received from the card issuer or its agents, You agree to pay all amounts due, including late payment fees and collection costs, upon demand. Each time you use the Service, or allow or cause the Service to be used, You agree and reaffirm that the Company is authorized to charge Your designated card. You agree that the Company may (at its option) accumulate charges incurred during Your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that the Company may delay obtaining authorization from Your card issuer until submission of the accumulated charge(s). LeadBuilders reserves the right at any time to withhold any services provided under this Agreement (with or without notice) or to terminate the Agreement if fees are not paid by the end of the day they are due or the funds due from any retainers have not been cleared. Actual collection fees incurred by LeadBuilders, up to 50% of the account balance, will be added to the unpaid balance. You agree to pay LeadBuilders 1.5% interest per month on all amounts owing and not paid when due. The Company reserves the right to suspend or terminate Your Service account without notice upon rejection of any card charges or if Your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes You are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company.
c. Your set up fees (if applicable) and recurring service fees are payable in advance and are non-refundable. You agree that the Company may submit charges for Your monthly service fee each month, without further authorization from You, unless You provide prior notice that You have terminated this authorization or wish to change Your designated card. Such notice will not affect charges submitted before the Company reasonably could act on Your notice. (Note: the Company takes no responsibility for contacting You prior to charging Your designated credit card for Your recurring service fee.) If You have any question regarding any charges that have been applied to Your account, You must contact the Company's Customer Service Department within 30 days of the charge date. Failure to use Your account will not be deemed a basis for refusing to pay any charges submitted by the Company in accordance with this Agreement.
6. ACCEPTABLE USE OF SERVICES.Client agrees to comply with the current LeadBuilders Acceptable Use Policy (the “Policy”) below. LeadBuilders reserves the right to amend the Policy from time to time, effective upon posting of the revised Policy at the aforementioned URL. Without limitation of the foregoing, Client agrees to use LeadBuilders's Live Web Chat Service only for its own lawful purposes. It is strictly prohibited from subjecting LeadBuilders live chat agents to any content, imagery, information, data or substance, including without limitation, that (1) is defamatory, libelous or invasive of another’s privacy; (2) is unedited, vulgar, sexually explicit or offensive; or, (3) infringes or violates any patent, copyright, trade secret, trade mark, trade name, service mark or other third party intellectual property right. If LeadBuilders becomes aware that the content of the Chats or the site on which the Live Web Chat button is installed violates any of the above or any federal or state law or regulation, LeadBuilders shall have the right to immediately terminate this Agreement at no liability to LeadBuilders.
7. RIGHT TO DISABLE. LeadBuilders reserves the right to suspend, disable, discontinue or terminate the Live Web Chat Services for any breach of this Agreement by Client, including without limitation failure by Client to timely pay all amounts due and owing and any additional late fees or finance charges or failure by Client to comply with the terms and obligations of the Policy. LeadBuilders shall not be responsible for any damages suffered, including without limitation lost revenue or profit, interruption of business, lost data or files, lost good will, pain and suffering, emotional distress or any other direct, indirect, incidental, exemplary, special or consequential damages suffered while access has been restricted due to non-payment or other breaches of this Agreement by Client. By signing below, Client acknowledges that Client has read, thoroughly understands, agrees and knowingly consents to all terms, conditions and obligations listed and set forth in this Agreement.
8. ATTORNEYS’ FEES AND COSTS. Should legal action be necessary to enforce, construe, cancel, terminate, rescind or recover for the breach of the provisions of this Agreement, the prevailing party shall be entitled to recover all costs of suit, including attorneys’ fees incurred therein.
9. AUTHORITY TO EXECUTE. The parties represent and warrant that the person signing on behalf of each such party is the duly authorized representative who has full authority to bind such party to the terms set forth herein.
10. CONFIDENTIALITY. Client shall mark all confidential information given to LeadBuilders with a legend prominently referring to its confidential nature and ownership by Client and shall orally and in writing inform LeadBuilders of its confidential nature. LeadBuilders will attempt to hold all such confidential information appropriately marked in strict confidence. LeadBuilders disclaims any liability or responsibility resulting from or related to the misuse of confidential information not appropriately marked. Information received or known through the public domain ceases to be confidential.
11. COUNTERPARTS AND FACSIMILE TRANSMISSION. This Agreement may be executed in counterparts and shall be deemed fully executed by all parties when counterparts hereof have been signed by each of them whether or not signatures of all parties appear on the original or any one copy of this Agreement. Facsimile transmission of any signed original document and retransmission of any signed facsimile transmission, shall be the same as delivery of an original.
a. Upon a material default by Client, LeadBuilders may, in its sole discretion, and without limiting its remedies or incurring any liability to Client, either temporarily discontinue or permanently terminate the furnishing of Live Web Chat Services to Client in whole or in part provided that such material default is not cured within five (5) days of receiving notification from LeadBuilders.
b. Upon a material default by Client, LeadBuilders may, in its sole discretion, and without limiting its remedies or incurring any liability to Client, terminate this Agreement, provided that such material default is not cured within five (5) days of receiving notification from Client.
c. Material default shall include any failure by Client to comply with any material term of this Agreement, including without limitation, failure to make timely payment of any amount due to LeadBuilders or failure to comply with the restrictions on use of Live Web Chat Services set forth in the Policy.
13. DISCLAIMER OF THIRD PARTY CONTROL AND ACTIONS REGARDING NETWORKS. LeadBuilders does not and cannot control the flow of data to or from other networks or the Internet. Such flow depends in large part on the performance of the Client’s internet service provider (“ISP”) and is controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which the Client’s connections to the Internet or Site may be impaired or disrupted. Although LeadBuilders will use reasonable commercial efforts to take actions it deems appropriate to remedy and avoid such events, LeadBuilders cannot guarantee that they will not occur. Accordingly, LeadBuilders disclaims any liability or responsibility resulting from or related to such events.
14. DOWNTIME. LeadBuilders is not responsible for downtime on the Site or in the Live Web Chat Services, including without limitation downtime caused by Client, Client’s employees, associates, agents or other personnel, or Client’s ISP. Moreover, LeadBuilders shall not be liable for interruptions caused by failure of equipment or services not provided by LeadBuilders, failure of communications, power outages, or other interruption not within the reasonable control of LeadBuilders, nor shall LeadBuilders be liable for performance deficiencies caused or created by Client's equipment. Finally, Client acknowledges that there may be limited time periods wherein LeadBuilders’s Live Web Chat Services are not available as a result of upgrades, repairs and other instances of downtime. The Client agrees that such downtimes will not constitute a breach of this Agreement and that there shall be no credits, reductions, or setoffs for downtime or interruption of Live Web Chat Services. Client understands and agrees that they are not purchasing dedicated or exclusive agents for their website, but that these Live Web Chat agents are shared across many LeadBuilders clients.
15. ENTIRE AGREEMENT. This Agreement represents the complete agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other agreements or understandings, written or oral.
16. FORCE MAJEURE. Neither party shall be liable for a breach of this Agreement if such party’s performance thereof is prevented or made substantially impracticable as a result of any force majeure event. In the event of any force majeure event, the party whose performance is prevented shall promptly notify the latter party of the existence of the force majeure event. If such force majeure event persists for more than thirty (30) days, the non-affected party may terminate this Agreement. “Force majeure event” means any event or series of events that are beyond the reasonable control of the affected party and that render such party's performance of this Agreement impossible or substantially impracticable including without limitation acts of God, fire, explosion, vandalism, storm, war, governmental mandate, insurrection, riot or work stoppage.
17. GOVERNING LAW, JURISDICTION AND VENUE. The construction, validity and performance of this Agreement shall be governed by, and construed in accordance with any applicable federal laws and the laws of the State of Utah, and the parties expressly exclude the application of and waive its choice of law rules. The parties agree that venue and jurisdiction for any litigation arising out of, related to, or regarding the validity of, this Agreement shall be in the State of Utah.6 . LINKS. The Service or related websites may provide links to other Websites or resources. User agrees that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, products or services available on such external sites or resources.
18. INTELLECTUAL PROPERTY RIGHTS. User acknowledges that content, including but not limited to policy information, text, software, music, sound, photographs, video, graphics, the arrangement of text and images, commercially produced information, and other material contained on the Site or through the Service ("Content"), is protected by copyright, trademarks, service marks, patents or other proprietary agreements and laws and User is only permitted to use the Content as expressly authorized by the Company. These Terms do not transfer any right, title, or interest in the Service, Site or the Content to User, and User may not copy, reproduce, distribute, or create derivative works from this Content without express authorization by the Company. User agrees not to use or divulge to others any information designated by the Company as proprietary or confidential. Any unauthorized use of any Content contained on the Site or through the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. EXCEPT AS SPECIFICALLY PERMITTED HEREIN, NO PORTION OF THE INFORMATION ON THE SITE MAY BE REPRODUCED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM THE COMPANY. USERS ARE NOT PERMITTED TO MODIFY, DISTRIBUTE, PUBLISH, TRANSMIT OR CREATE DERIVATIVE WORKS OF ANY MATERIAL FOUND ON THE SITE FOR ANY PUBLIC, PERSONAL OR COMMERCIAL PURPOSES.
19. TRADEMARKS. "Company Trademarks" means all names, marks, brands, logos, designs, trade dress and other designations the Company uses in connection with the Service or any other service. User acknowledges the Company' rights in the Company Trademarks and agrees that any and all use of the Company Trademarks by User shall inure to the sole benefit of the Company.
20. DISCLAIMER OF WARRANTIES. USER EXPRESSLY AGREES THAT USE OF THE SITE AND THE SERVICE IS AT USER'S SOLE RISK. THE SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FORA PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE COMPANY MAKES NO WARRANTY THAT THE SITE OR SERVICE WILL MEET USER'S REQUIREMENTS, OR THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR VIRUS-FREE NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR ANY INFORMATION OR PRODUCTS OBTAINED THROUGH THE SITE OR SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. USER UNDERSTANDS AND AGREES THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICE IS DONE AT USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES UNDER CERTAIN CIRCUMSTANCES; CONSEQUENTLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO USER, IN WHOLE OR IN PART.
21. LIMITATION OF LIABILITY. As a condition of use of the Service, and in consideration of the Services provided by the Company, User agrees that neither the Company, nor any officer, affiliate, director, shareholder, agent, contractor or employee of the Company (the "Company Affiliates"), will be liable to User or any third party for any direct, indirect, incidental, special, punitive, or consequential damages, loss of profits, loss of earnings, loss of business opportunities, damages, expenses, or costs resulting directly or indirectly from, or otherwise arising in connection with the Service, Site or Content; including but not limited to any of the following: Reliance, Termination, Infringement, Force Majeure. The limitations set forth in this section apply to acts, omissions, negligence, and gross negligence of Company and/or the Company Affiliates, which, but for this provision, would give rise to course of action in contract, or any other legal doctrine. The Company shall not be liable for any direct, indirect, incidental, punitive, special, multiple, or consequential damages resulting from the use or inability to use the Services or for cost of procurement or substitute goods and services or resulting from any products or services purchased or obtained through the site including loss of profits, use, data or intangible property, even if the Company has been advised of the possibility of such damages. The entire liability of the Company and Your exclusive remedy with respect to the use of the site and service are limited to the lesser of (1) the amount actually paid by You for the Service during the three (3) months preceding the date of Your claim; or (2) US $500.00. You hereby release the Company and the Company Affiliates from any all obligations, liabilities and claims in excess of this limitation.
22. NO RESALE OF THE SERVICE. User agrees not to reproduce, duplicate, copy, sell resell, exploit or make any commercial use of or access to the Service, without the express written consent of the Company.
23. LAWFUL USE. User agrees that use of the site is subject to all applicable national, state, and local laws and regulations, and that User is solely responsible for the contents of its communications through the Service.
24. INDEMNIFICATION. User will defend, indemnify and hold harmless the Company and the Company Affiliates, and their respective successors and permitted assigns, from and against any claim, suit, demand, loss, damage, expense (including reasonable attorneys' fees and costs) or liability that may result from, arise out of or relate to: (a) acts or omissions by User arising out of or in connection with this Agreement; (b) intentional or negligent violations by User of any applicable laws or governmental regulation, (c) contractual relations between the User and a third party; or (d) infringement of intellectual property rights including, but not limited to, rights relating to patent and copyright. User acknowledges that the Company has no control over the content of information transmitted by User or User's customers and that the Company does not examine the use to which User or User's customers put the Service or the nature of the information User or Users customers send or receive. User hereby indemnifies and holds harmless the Company and Company Affiliates from any and all loss, cost, damage, expense, or liability relating to or arising out of the transmission, reception, and/or content of information of whatever nature transmitted or received by User or Users.
25. ACCESS TO PASSWORD PROTECTED/SECURE AREAS. Access to and use of password protected and/or secure areas of the Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution.
26. RELEASE. Client, for itself and for all persons and entities claiming by, through or under it, hereby completely releases, acquits, and forever discharges LeadBuilders, and each of LeadBuilders’s directors, officers, principals, agents, employees, attorneys, successors, assigns, parent corporations, subsidiaries, affiliates, and all other persons or entities with whom any of the former have been, are now or may hereafter be affiliated, or from whom LeadBuilders obtains network services, from any debts, claims, demands, obligations, liabilities, damages, actions, and causes of action of any and every kind whatsoever, whether now known or not and whether now accrued or not, and in whatever legal theory or form, whether asserted or unasserted, held or claimed, or that could be claimed, by Client as against LeadBuilders, including without limitation any claims arising out of or relating in any way to this Agreement and any and all amendments thereto; the negligence or willful misconduct of Client; and/or the Site content, including without limitation the allegations that the Site content infringes or violates the intellectual property rights of any third party or other person or entity.
27. SECURITY. LeadBuilders is not responsible for any security breaches caused by Client or any of Client’s employees, associates, agents or other personnel, including without limitation any information lost, or tampered with, through the releasing of the login information or FTP access information to an unauthorized party, or otherwise.
28. SEVERABILITY. The provisions of this Agreement shall, where possible, be interpreted in a manner to sustain their legality and enforceability, any such portion not enforceable shall not affect the remaining terms of this Agreement.
29. TECHNICAL SUPPORT. LeadBuilders will not provide technical support to Client or to Client’s employees, associates, agents or other personnel, other than agreed to in writing signed by the parties. Any modifications, changes, alterations, amendments, change orders or upgrades to the Site will be an additional charge and must be agreed to in writing and signed by the parties.
30. TERMINATION & EFFECT. The Company may terminate or suspend access to the Service or Site with or without cause at any time and effective immediately. Reasons for termination or suspension shall include, but are not limited to, the following: inactivity of the User; violation of any terms listed in this policy; or failure to pay for Services.. The Company shall not be liable to User or any third party for termination of the Service or Site. Should User object to any provision of the Terms or any subsequent modifications thereto or become dissatisfied with the Service or Site in any way, Users only recourse is to immediately: (a) terminate use of the Service and Site; and (b) notify the Company of termination. Upon termination of access to the Service and Site, User's right to use the Service and Site shall immediately cease. In the event of User default, User agrees to pay all costs, expenses and reasonable attorneys' fees expended by LeadBuilders in enforcing this Agreement or collecting any sums due hereunder both in and out of bankruptcy and before and after judgment.
31. SEVERABILITY. In the event that any provision of the Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms. The Company's failure to act with respect to a breach by User or others does not waive its right to act with respect to subsequent or similar breaches.
32. WAIVER. The failure of either party to insist upon the performance of any term or condition of this Agreement or to exercise any right hereunder on one or more occasions shall not constitute a waiver or relinquishment of its right to demand future performance of such term or condition, or to exercise such right in the future.
33. CONFIDENTIALITY. Client recognizes that Client may, in the course of obtaining or using the Services, come into possession of or learn confidential and proprietary business information of LeadBuilders ("Confidential Information"). Client agrees that during the Term of this Agreement and thereafter: (a) Client shall provide, at a minimum, the care to avoid disclosure of unauthorized use of Confidential Information as is provided with respect to Client's own similar information, but in no event less than a reasonable standard of care; (b) Client will use Confidential Information solely for the purposes of this Agreement; and (c) Client will not disclose Confidential Information to any third party without the express prior written consent of the Company. Upon termination, Client will promptly return to the Company any Confidential Information. If the Company transfers its business or any business segment that provides Services to Client, the Company is authorized to transfer all User information to Company's successor. LeadBuilders may elect to record calls at any time for training or quality assurance.
34. OWNERSHIP. All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Service are wholly owned by the Company and/or its licensors and service providers except where expressly stated otherwise. User agrees that User is not the owner of any phone number assigned to User by the Company. Upon termination of account for any reason, such number may be re-assigned immediately to another customer. Company may from time-to-time need to change the number assigned to You. Company will not be liable for damages (consequential or special) arising out of such re-assignment or number change. User hereby waives any claims with respect to such change. User is not authorized to charge services to number assigned, any such charges will give the Company the right to immediately terminate Your account without notice and bill such charges to User.