Last Updated: January 2023
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND SERVICES AVAILABLE THROUGH THE SITE.
THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US OR OUR AGENTS, VENDORS, CONTRACTORS, AND REPRESENTATIVES (INCLUDING ANY THIRD-PARTY BENEFICIARY OF THESE TERMS) ON AN INDIVIDUAL BASIS ONLY, AND BY USING THE SITE AND ENTERING INTO THESE TERMS, YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN ANY COURT, TO HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY, OR TO BRING ANY CLAIMS AGAINST US IN A CLASS ACTION FORMAT (INCLUDING AS A CLASS REPRESENTATIVE OR MEMBER OF ANY PUTATIVE CLASS).
If You Want to Use This Site,
then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Site (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Site if you do not agree.
The business realities associated with operating the Site are such that, without the conditions that are set forth in these Terms — such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and arbitration of certain disputes – Boss Leads would not make the Site available to you. Boss Leads is paid a marketing lead generation fee by Advertisers (defined below) for the goods, facilities and services provided.
Boss Leads provides access to a proprietary platform (commonly referred to as the “Boss Center”) (hereinafter, the “Platform”) which contains campaigns for the purpose of promoting and driving traffic to Boss Leads and third-party products and services (each, an “Advertiser”) and which allows lead generators (each, a “Publisher”) to post consumer information (“Leads”) to the Platform for Advertisers to use.
Boss Leads is a licensed data broker, not a provider of consumer goods or services. We do not provide advice or endorse products or Advertisers or Publishers that appear on our Site or other communication channels. BOSS LEADS, ADVERTISERS AND PUBLISHERS DO NOT OWE TO EACH OTHER ANY DUTIES, FIDUCIARY OR OTHERWISE, AND EACH PARTY RELEASES THE OTHER FROM ALL MANNER OF ACTIONS, WHETHER PAST, PRESENT OR FUTURE, ACTUAL OR CONTINGENT, ARISING OUT OF OR RELATED TO SUCH DUTIES, EXCEPT AS EXPLICITLY STATED IN THESE TERMS OR AN AGREEMENT ENTERED INTO BETWEEN BOSS LEADS AND THE ADVERTISER OR PUBLISHER.
Linkable Table of Contents
It is important that you read and understand these entire Terms before using the Site. This table of contents further highlights some key issues and points. You can click on the headings and “More” links to be taken to the full explanation.
1. Site Content, Ownership, Limited License, and Rights of Others
We only grant you a limited revocable license to use the Site for your own non-commercial use subject to rules and limitations.
2. Conditions; Site and Content Use Restrictions
Your use of our Site is subject to our rules.
3. Feedback You Submit
You grant us a broad license, which we may sublicense, to the content or feedback you submit, which you represent you have the right to allow us to use.
4. Notices and Questions
Click here to contact us with questions. You agree that we may provide you notices, including notices of new terms and conditions, by posting notice on the home page of the Site or by other reasonable means, such as to the email you provided.
5. Links by You to the Site
You may link to our Site, subject to some basic rules.
6. Linked-To Websites; Advertisements; Dealings with Third Parties
We are not responsible for third parties or their content, advertisements, apps, or sites.
7. Wireless Features
Wireless carrier charges may apply to use of the Site via wireless networks or Devices.
8. Dispute Resolution
You agree to arbitrate most disputes and waive jury trial and class actions.
9. Representations and Warranties; Disclaimer of Representations and Warranties
We disclaim most warranties and provide the Site “As Is”.
10. Tracking and Payment Terms
We track certain activities to determine payment.
12. Limitations of our Liability
Our liability is greatly limited.
13. Security; Confidentiality
You agree that all websites and consumer information collected thereon are secure, and all confidential information will not be disclosed unless authorized by these Terms.
14. Waiver of Injunctive or Other Equitable Relief
You waive equitable or injunctive relief.
15. Updates to Terms
These Terms and Additional Terms posted on the Site at each time of use apply to that use, and the Terms may be prospectively updated as our Site evolves. Posting of new terms on the Site is notice to you thereof.
16. General Provisions
You agree to various other terms and conditions.
1. Site Content, Ownership, Limited License, and Rights of Others
- Content. The Site contains a variety of: (i) materials and other items relating to Boss Leads, Boss Leads’ products and services, and similar items from our licensors and other third parties, including all layout, information, articles, reviews, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Site, and the compilation, assembly, and arrangement of the materials of the Site, and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of Boss Leads (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
- Ownership. The Site (including past, present and future versions) and the Content are owned or controlled by Boss Leads and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Site is the property of Boss Leads or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible. Boss Leads owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Site.
- Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Boss Leads grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download (temporary storage only), display, view, use, play, and/or print one (1) copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Boss Leads’ sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
- Rights of Others. When using the Site, you must respect the intellectual property and other rights of Boss Leads and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
2. Conditions; Site and Content Use Restrictions
- Services. Upon approval and access to the Platform, Publisher shall receive the following services (collectively, “Services”): Access to the Platform to post Leads to Advertisers; tracking identification and scripts unique to each Advertiser campaign; continuous statistics related to sales generated by Publisher; and invoicing to Advertisers and payment processing to Publisher. Publishers seeking to promote third-party campaigns, including, but not limited to, text, html and other creatives (collectively, “Marketing Content”) may review Marketing Content and terms of promotion on the Platform and accept such Marketing Content for promotion. Publisher shall promote such Marketing Content through Publisher’s promotional marketing media approved by Company (collectively, “Promotional Content”). Publisher’s Promotional Content shall comply with all applicable laws, rules, and regulations governing the same. Publisher’s Promotional Content must be approved by Company prior to use. All terms of compensation shall be set forth in an insertion order agreed upon between the parties (an “Insertion Order” or “IO”) which incorporates these Terms as though fully set forth therein. Publisher is precluded from utilizing co-registration, survey or incentive marketing practices. Publisher is prohibited from marketing services utilizing SMS or text messages. In connection with performing the Services under these Terms, Publisher will not: (i) engage in the practice of search engine “spamming” (i.e., the inappropriate use of search engine optimization tactics such as doorway pages or cloaking); (ii) provide visitors with any incentive or compensation on the Publisher website (unless the incentive is approved in advance by Company); or (iii) use the Platform in pop-up or pop-under ads (unless approved in advance by Company). Publisher shall not misrepresent Company or any third party placing Marketing Content on the Platform (or any of their respective products or services). Publishers using the Platform shall post in real time with Leads derived from real persons providing accurate and truthful information. No use of batched Leads or Leads generated from automated means is allowed. Publishers using the Platform shall identify and use methods to verify authenticity of Lead prior to posting. Publisher agrees that Company shall have the right to withhold all payment and suspend Publisher’s account immediately upon notice if any traffic of Publisher is received in violation of these Terms.
- Advertising. Publisher will display the Marketing Content in the exact form in which Company presents it and will not alter, modify, delete, disable or impede the display of the of Campaigns and the Platform in any manner. For Publishers posting Leads, Publisher shall provide the URL which is in use to collect the consumer Lead and shall post user registration, in real time, from the Publisher lead generation website to the Platform in a method and manner as agreed to by Company. Publisher agrees that it will promptly, upon request, modify or alter the Promotional Content or the Platform link or tracking software in accordance with Company’s instructions. Posting Publisher agrees that it will promptly, upon request, modify or alter its lead generation website or posting link in accordance with Company’s instruction.
- Approval of Promotional Content. Publisher shall provide Company with its Promotional Content including: (i) text, images, web pages, and content on web pages of the Publisher Promotional website; and (ii) search terms, URLs and search result descriptions before being used by Publisher to market the web pages of the Publisher utilizing the Platform shall identify the website containing the registration page or Platform link. Post Publisher shall provide URL where Lead is generated for review by Company and shall not make substantial changes to the URL unless notice is given to Company. All URL(s) used for Post Publishing must be in compliance with all applicable laws, rules, and regulations.
- Misrepresentation. Publisher shall not misrepresent Company or any third party placing Marketing Content on the Platform (or any of their respective products or services). Publishers using the Platform shall post in real time with Leads derived from real persons providing accurate and truthful information. No use of batched Leads or Leads generated from automated means is allowed. Publishers using the Platform shall identify and use methods to verify authenticity of Lead prior to posting.
- Networks and Sub-Publishers. Publisher may use any type of ad or affiliate networks or sub-publishers in promotion of any Company Platform, Promotional Content or Marketing Content upon prior written approval of Company. Publishers utilizing the Platform shall not transfer or post Leads derived from third parties without written consent of Company. To the extent Publisher or posting Publisher utilizes networks or sub-publishers, it shall be fully responsible and liable for all conduct and posting of such third parties and shall fully indemnify Company as set forth in Section 16.
- Acceptable Traffic Sources. Through its promotional efforts to generate traffic to the Platform or third-party websites, Publisher may only use the following traffic sources: banner advertisements, organic website traffic, paid search marketing (e.g., Google AdWords), commercial email, mobile, social media. The use of any other traffic source will require Publisher to enter into a separate agreement. Non-approved media that will require a separate agreement are co-registration paths or path with consecutive offers (incent or non-incent), surveys and exit traffic. For the avoidance of doubt, Publisher shall not use unless approved through a separate agreement or amendment any call centers or otherwise make outbound calls or receive inbound calls.
- Site Use Restrictions. You agree that you will not: (i) use the Site for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Site that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Boss Leads; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site (or any data collected therefrom); (v) engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Boss Leads, or other users of the Site; (vi) interfere with or circumvent any security feature of the Site or any feature that restricts or enforces limitations on use of or access to the Site or the Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Site, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Site, other computer systems or networks connected to the Site, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms.
- Content Use Restrictions. You also agree that, in using the Site: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content; (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate, or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of Boss Leads or, in the case of Content from a licensor, the owner of the Content; (vii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience; and (viii) to the extent you use search engine marketing, you will not impede or impair another party’s intellectual property rights and shall otherwise ensure your Marketing Content in full compliance with applicable laws.
- Availability of Site and Content. Boss Leads may immediately suspend or terminate the availability of the Site and Content (and any elements and features of them), in whole or in part, for any reason, in Boss Leads’ sole discretion, and without advance notice or liability.
- Reservation of All Rights Not Granted as to Content and Site. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Site. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Boss Leads and its licensors and other third parties. Any unauthorized use of any Content or the Site for any purpose is prohibited.
3. Feedback You Submit
- General. Boss Leads may now or in the future offer users of the Site the opportunity to upload, display, publish, distribute, transmit, or otherwise make available on or submit through the Site, messages, text, files, comments, responses, information, content, results, reviews, suggestions or other information or materials and the ideas contained therein (collectively, “User-Generated Content”). Boss Leads may allow you to do this through contact us, email, and other communications functionality. Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
- License to Boss Leads of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms, which specifically govern the submission of your User-Generated Content), you hereby grant to Boss Leads, and you agree to grant to Boss Leads, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. In order to further effect the rights and license that you grant to Boss Leads to your User-Generated Content, you also hereby grant to Boss Leads, and agree to grant to Boss Leads, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 3(C).
4. Notices and Questions
- You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the Site, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address.
If you have a question regarding using the Site, you may contact us here.
5. Links by You to the Site
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Site, so long as: (a) the links only incorporate text, and do not use any Trademarks; (b) the links and the content on your website do not suggest any affiliation with Boss Leads or cause any other confusion; and (c) the links and the content on your website do not portray Boss Leads or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Boss Leads. Boss Leads reserves the right to suspend or prohibit linking to the Site for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
6. Linked-To Websites; Advertisements; Dealings with Third Parties
- Linked Sites; Advertisements. The Site may contain links, as part of third-party ads on the Site or otherwise, to or from third-party websites (“Linked Sites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Boss Leads. Boss Leads may have no control over the content, operations, policies, terms, or other elements of Linked Sites, and Boss Leads does not assume any obligation to review any Linked Sites. Boss Leads does not endorse, approve, or sponsor any Linked Sites, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, Boss Leads is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Finally, Boss Leads will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Sites. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Sites. Boss Leads disclaims all liability in connection therewith.
- Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Site (including on or via Linked Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Boss Leads disclaims all liability in connection therewith.
- Wireless Features. The Site may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Site’s features and upload content to the Site, receive messages from the Site, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
- Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered for, we may send communications to your wireless Device regarding us or other parties. You agree that by providing Boss Leads with your email address and phone number through your use of the Wireless Features, you consent to receive communications related to your use of Boss Leads’ services. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Site for Wireless Features, then you agree to notify Boss Leads of any changes to your wireless contact information (including phone number).
- Telephone and Mobile Communications and Agreement To Be Contacted. Boss Leads may offer from time to time a text message or other SMS program (the “SMS Program”), through which it sends periodic autodialed text or SMS messages with Boss Leads and third-party offers. You will only receive these autodialed text/SMS marketing messages if you have opted in to the recurring text/SMS message program, and you are not required to opt in to make a purchase from Boss Leads. Although the SMS Program is free, message and data rates may apply. You should check with your wireless carrier if you have questions about your plan and its coverage. To stop receiving marketing text/SMS messages from Boss Leads, reply STOP to the last message received. You may receive a single subsequent text/SMS message confirming your opt-out. For more information, reply HELP to the last message received or contact us at firstname.lastname@example.org.
- Providing Telephone Numbers and Other Contact Information. You verify that any contact information provided to Boss Leads, including, but not limited to, your name, mailing address, email address, your residential or business telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide. You are strictly prohibited from providing a phone number that is not your own. If we discover that any information provided in connection with your account is false or inaccurate, we may suspend or terminate your account at any time. Should any of your contact information change, including ownership of your telephone numbers, you agree to immediately notify us before the change goes into effect by texting STOP to all of our shortcodes to which you are subscribed or contacting us at email@example.com.
- Your Consent to Receive Automated Calls/Texts. You acknowledge that by voluntarily providing your telephone number(s), you expressly agree to receive artificial voices, prerecorded voice messages, and/or autodialed calls and text messages (such as SMS, MMS, or successor protocols or technologies) from us, our agents, and affiliates related to your account(s), transactions, offers regarding products or services, and/or your relationship with Boss Leads. You acknowledge that automated calls or text messages may be made to your telephone number(s) even if your telephone number(s) is registered on any state or federal Do Not Call list. You agree that Boss Leads may obtain, and you expressly agree to be contacted at, any email addresses, mailing addresses, or phone numbers provided by you at any time or obtained through other lawful means. You agree to receive automated calls and text messages from Boss Leads, our agents, and affiliates even if you cancel your account or terminate your relationship with us, unless you opt-out. You understand that you do not have to agree to receive automated promotional calls/texts as a condition of purchasing any goods or services. To opt-out, please see the Opt-Out Instructions below.
- Opt-Out Instructions. Your consent to receive automated calls and texts is completely voluntary. You may opt-out at any time. To opt-out of text messages, text STOP to any text message you receive. You may also text HELP for help. You acknowledge and agree to receive a final text message confirming your opt-out. We may use different shortcodes for different messaging purposes, so texting STOP to one shortcode will not effectuate a stop request for all shortcodes to which you are subscribed. If you would like to stop messages from multiple shortcodes, text STOP to each shortcode to which you would like to unsubscribe. It is your sole responsibility to notify us if you no longer want to receive automated text messages. You waive any rights to bring claims for unauthorized or undesired text messages by failing to opt-out immediately or by failing to follow these instructions. Please allow up to thirty (30) days to process any opt-out request.
- Fees and Charges. There is no fee to receive automated text messages from Boss Leads, our agents, and affiliates. However, you may incur a charge for these calls or text messages from your telephone carrier, which is your sole responsibility. Check your telephone plan and contact your carrier for details. You represent and warrant that you are authorized to incur such charges and acknowledge that Boss Leads, our agents, and affiliates are not responsible for such charges.
- Unauthorized Use of Your Telephone Device. You must notify Boss Leads immediately of any breach of security or unauthorized use of your telephone device. Although Boss Leads, our agents, and affiliates will not be liable for losses caused by any unauthorized use of your telephone device, you may be liable for our losses due to such unauthorized use.
8. Dispute Resolution
PLEASE READ THIS ENTIRE SECTION CAREFULLY, AS YOU ARE WAIVING CERTAIN LEGAL RIGHTS IN THE EVENT OF ANY DISPUTE WITH US AND ARE AGREEING TO BINDING INDIVIDUAL ARBITRATION, AMONG OTHER THINGS.
- First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, the Services, the Platform, the Platform, the Content, Marketing Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Boss Leads’ actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth in Section 8(D), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such contact information exists or if such information is not current, then we have no obligation under this Section 8(A). Your notice to us must be sent via certified U.S. mail to: Boss Leads, Inc., 4450 Arapahoe Avenue, #100, Boulder, CO 80303 (Attn: Legal Department). The written description included in your notice must be on an individual basis and provide at least the following information: your name; the nature or basis of the claim or dispute; the date of any purchase or transaction at issue (if any and if available), and the relief sought. For a period of sixty (60) days from the date of receipt of notice from the other party, Boss Leads and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, through an informal telephonic dispute resolution conference between you and Boss Leads in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Boss Leads to resolve the Dispute or Excluded Dispute on terms with respect to which you and Boss Leads, in each of our sole discretion, are not comfortable. The informal telephonic dispute resolution conferences shall be individualized such that a separate conference must be held each time either party intends to commence individual arbitration; multiple individuals initiating claims cannot participate in the same informal telephonic dispute resolution conference. If either party is represented by counsel, that party’s counsel may participate in the informal telephonic dispute resolution conference, but the party also must appear at and participate in the conference. This informal dispute resolution process is a prerequisite and condition precedent to commencing any formal dispute resolution proceeding. The parties agree that any relevant limitations period and filing fee or other deadlines will be tolled while the parties engage in this informal dispute resolution process. Certain portions of this Section 8(A) are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Boss Leads agree that we intend that this Section 8(A) satisfies the “writing” requirement of the Federal Arbitration Act (“FAA”).
- Binding Arbitration. If we cannot resolve a Dispute as set forth in Section 8(A) within sixty (60) days of receipt of the notice, then ANY DISPUTE ARISING BETWEEN YOU AND BOSS LEADS OR ANY OF ITS AGENTS, VENDORS, CONTRACTORS, OR OTHER THIRD-PARTY BENEFICIARY OF THESE TERMS (whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, any other intentional tort or negligence), common law, constitutional provision, respondeat superior, agency or any other legal or equitable theory), whether arising before or after the effective date of these Terms, MUST BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION. The FAA, not state law, shall govern the arbitrability of all disputes between Boss Leads and you regarding these Terms (and any Additional Terms) and the Site, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. Boss Leads and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 16(B) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and Boss Leads regarding these Terms and the Site, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles. An Excluded Dispute will only be subject to binding arbitration pursuant to this Section 8 if the parties mutually agree. Any Dispute will be resolved solely by binding arbitration in accordance with the then-current: (i) Consumer Arbitration Rules of the American Arbitration Association “AAA”) then in effect since the matter involves a “consumer” agreement as defined by Consumer Arbitration Rule R-1; and if such Consumer Arbitration Rules do not apply then: (ii) the Commercial Arbitration Rules (collectively, “Rules”) of the AAA, except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Boss Leads consent to in writing.
- Arbitration Process. If after sixty (60) days the informal dispute resolution procedure set forth in Section 8(A) above is unsuccessful in resolving the parties’ dispute, a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Rules. (The AAA provides applicable forms for Demands for Arbitration available at https://www.adr.org/sites/default/files/Demand_for_Arbitration_0.pdf (Commercial Arbitration Rules) and https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf (Consumer Arbitration Rules), and a separate affidavit for waiver of fees for California residents only is available at https://adr.org/sites/default/files/Waiver_of_Fees_CA_Only.pdf.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state or county in which you reside. The parties will first attempt to agree on an arbitrator. If the parties are unable to agree upon an arbitrator within twenty-one (21) days of receiving the AAA’s list of eligible neutrals, then the AAA will appoint the arbitrator in accordance with the Rules. The arbitration may be conducted by telephone or based on written submissions, and if an in-person hearing is required, then it will be conducted in the county where you live or at another mutually agreed upon location. You and we will pay the administrative and arbitrator’s fees and other costs (and please note that you will be responsible for a portion or percentage of such fees) in accordance with the requirements of the Rules; but if the Rules (or other applicable arbitration rules or laws) require Boss Leads to pay a greater portion or all of such fees and costs in order for this Section 8 to be enforceable, then Boss Leads will have the right to elect to pay the fees and costs and proceed to arbitration. Except as set forth in Section 8(D), the arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. The arbitrator will render an award within the time frame specified in the Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the Rules, and these Terms. The arbitrator’s award of damages and/or other relief must be consistent with the terms of the Limitations of our Liability Section above as to the types and the amounts of damages or other relief for which a party may be held liable. If a claim is brought seeking public injunctive relief and a court determines that the restrictions prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such claim (and that determination becomes final after all appeals have been exhausted), the claim for public injunctive relief will be determined in court and any individual claims will be arbitrated. In such a case, the court shall stay the claim for public injunctive relief until the arbitration pertaining to individual relief has been entered in court. In no event will a claim for public injunctive relief be arbitrated. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. Attorneys’ fees will be available to the prevailing party in the arbitration only if authorized under applicable substantive law governing the claims in the arbitration. If the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), Boss Leads will have the right to recover its attorneys’ fees and expenses. This arbitration provision shall survive termination of these Terms or the Site. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and http://www.adr.org and JAMS: 800.352.5267 and http://www.jamsadr.com.
- Special Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against Boss Leads by the same or coordinated counsel or are otherwise coordinated, you understand and agree that the resolution of your Dispute might be delayed. You also agree to the following coordinated bellwether process and application of the AAA Multiple Consumer Case Filing Fee Schedule. Counsel for the claimants and counsel for Boss Leads shall each select five (5) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process; the parties may but are not required, to agree in writing to modify the number of cases to be included in the bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings pursuant to this provision. In the bellwether process, a single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator during the bellwether process unless the parties agree otherwise. After decisions have been rendered in the first ten (10) cases, Boss Leads and all claimants shall engage in a global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the bellwether cases. If the parties are unable to resolve the remaining cases after the mediation, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. After decisions have been rendered in the second group of twenty (20) cases, Boss Leads and all claimants shall engage in a second global mediation in an attempt to resolve the remaining cases with the benefit of the decisions in the decided bellwether cases; if a global settlement cannot be reached in the second mediation, the parties also may discuss with the mediator the process for resolving the remaining cases with the benefit of the decisions in the first two (2) rounds of bellwether cases; the parties are not required to agree to any modifications to the process set forth herein. Absent a settlement or agreement to modify the procedure for arbitrating the remaining cases, in order to increase the efficiency of administration and resolution of arbitrations, the arbitration provider shall: (i) administer the arbitration demands in batches of fifty (50) demands per batch (to the extent there are fewer than fifty (50) arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); (ii) designate one (1) arbitrator for each batch; and (iii) provide for a single filing fee due per side per batch. You agree to cooperate in good faith with Boss Leads and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of single filing and administrative fees for batches of claims. This “batch arbitration” provision shall in no way be interpreted as authorizing class arbitration of any kind. Boss Leads does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Section 8(D). The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this Section 8(D) from the time of the first cases are selected for a bellwether process until the time your case is selected to proceed, withdrawn, or otherwise resolved. A court shall have authority to enforce this Section 8(D) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Boss Leads.
- Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 8(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 8(A); (b) filing for arbitration with JAMS as set forth in Section 8(B); or (c) filing an action in state or Federal court. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
- Injunctive Relief. The foregoing provisions of this Section 8 will not apply to any legal action taken by Boss Leads to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, the Services, the Platform, the Content, the Marketing Content, and/or Boss Leads’ intellectual property rights (including such Boss Leads may claim that may be in dispute), Boss Leads’ operations, and/or Boss Leads’ products or services.
- No Class Action Matters. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Except as expressly contemplated for mass arbitrations set forth in Section 8(D), Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 8(F). Notwithstanding any other provision of this Section 8, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions. Notwithstanding any other provision of this Agreement, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then this entire arbitration agreement shall be void. If any portion of this arbitration agreement other than the class action waiver and prohibition against class arbitration is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration agreement.
- Federal and State Courts in Boulder County, Colorado. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted in state or Federal court in Boulder County, Colorado. Accordingly, you and Boss Leads consent to the exclusive personal jurisdiction and venue of such courts for such matters.
- Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court on an individual basis for disputes and actions within the scope of such court’s competent jurisdiction.
9. Representations and Warranties; Company Disclaimer of Representations and Warranties
- Representations and Warranties. You represent and warrant to Company that all material submitted to the Site shall: (i) be undertaken in accordance with applicable laws, rules and regulations, including but not limited to any government agency rule or regulation or any judicial decree; (ii) not violate any intellectual property or other proprietary right of any third party; and (iii) not contain any content which may reasonably be considered unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent, or tortious. You represent and warrant that all Leads posted to the Site were obtained by you in accordance with the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., and its related implementing regulations (hereafter, the “TCPA”), and equivalent state calling statutes and regulations, including, but not limited to, requirements regarding prior express written (or other forms of) “consent” for consumers to receive advertising or marketing messages from Boss Leads and Advertisers that are automated, prerecorded, or artificial. You will exercise best efforts to prevent the introduction through data transmission via modem or any other medium or in the performance of any service hereunder, any virus, worm, trap door, back door, or any other contaminant, or disabling devices, including, but not limited to, timer, clock, counter, or other limiting routines, codes, commands, or instructions that may have the effect or be used to access, alter, delete, damage, or disable systems, other software, information, or other property of Boss Leads or of the recipients of your advertisements hereunder. You shall not sublicense or distribute any Marketing Content or Platform access to a third party without Company’s prior express written permission.
- COMPANY DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. YOUR ACCESS TO AND USE OF THE SITE, AND THE PLATFORM, IS AT YOUR SOLE RISK. THE SITE, AND THE PLATFORM, IS PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. Therefore, to the fullest extent permissible by law, BOSS LEADS and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “Boss Leads Parties”) hereby disclaim and make no representations, warranties, guarantees, endorsements, or promises, express or implied, as to:
- (a) the Site (including the Content, User-Generated Content, and Platform);
- (b) the functions, features, or any other elements on, or made accessible through the Site;
- (c) any products, services, or instructions offered or referenced at or linked through the Site;
- (d) security associated with the transmission of your User-Generated Content transmitted to Boss Leads via the Site;
- (e) whether the Site or the servers that make the Site available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
- (f) whether the information (including any instructions) on the Site is accurate, complete, correct, adequate, useful, timely, or reliable;
- (g) whether anything on the Site or Platform (or data provided by Boss Leads) complies with any particular law, including but not limited to the TCPA;
- (h) whether any defects to or errors on the Site will be repaired or corrected;
- (i) whether your access to the Site will be uninterrupted;
- (j) whether the Site will be available at any particular time or location; and
- (k) whether your use of the Site is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A BOSS LEADS PARTY, BOSS LEADS PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties, so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
10. Tracking and Payment Terms
- Tracking Codes. Company may insert certain tracking technologies, including, without limitation, embedded tags, source codes, links, and pixels (“Tracking Technologies”) within Marketing Content which, among other things, may enable Company to measure the effectiveness and click-through rates of Publisher’s services and to ensure compliance with these Terms. Publisher shall not, and shall not attempt to, modify, circumvent, impair, disable, restrict, or otherwise interfere with any Tracking Technologies. Company may, but is not obligated to, share information or data Company derives from any Tracking Technologies with Publisher for the purpose of enabling Publisher to improve or optimize the effectiveness of its services. Publisher agrees and acknowledges all Tracking Technologies shall be and remain the exclusive property of Company and fall within the confines of Confidential Information as defined herein below. Tracking Technologies will only be made available “as is” without representation or warranty of any kind. If Publisher discovers any errors or nonconformities in any Tracking Technologies, Publisher shall notify Company and Company shall review Publisher’s findings and make corrections Company determines in its sole discretion to be appropriate.
- Publishers Utilizing the Platform. Publisher will be paid per the terms of each posting program (a “Posting Program”) for a Valid Lead (defined below) sold to Advertisers. Company shall pay any amounts due approximately fifteen (15) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company. In the event Publisher breaches this agreement, Publisher shall forfeit its rights to any amounts owed to Publisher. Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by an Advertiser for any reason. Company shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Company will not pay for any Valid Lead posts that occur after a Posting Program terminates Leads that were not delivered in real time; Leads that are missing or have invalid consumer data; fraudulent Leads; Leads not posted by an individual or Leads that lack TCPA compliant (or other legally required) consent. Invoices submitted to Company and payments made to Publisher shall be based on the reports provided by Company. Company will not be responsible to compensate Publisher for Leads that are not recorded due to Publisher’s error. Company will require a Publisher to provide a W-9, and similar such information, as a condition to payment. A Lead shall be deemed as “Valid Lead” if it satisfies each of the following requirements, as applicable: (i) originates from one of Publisher’s acceptable traffic sources; (ii) originates from an internet user meeting all applicable criteria (e.g., geographic location, type of good or service sought, etc.); (iii) does not represent a duplicate, inaccurate or incomplete Lead; (iv) is not determined by Company to originate from any program where fraudulent, misleading or automated activity was used to generate the Lead; (v) does not contain a clearly false name, telephone number or email address; (vi) is not generated through methods that are considered inappropriate by search engines, for example: Search SPAM, cloaking, link farms, hidden text, etc.; (vii) is correctly coded by Publisher; and (viii) meets all other requirements as determined by Company in its sole discretion. Company’s determination of whether a Lead is Valid shall be final and binding.
- Publishers Utilizing the Platform. The number of completed actions, click-throughs, or impressions (or other applicable unit) for which payment is due under each IO, shall be as recorded by Company’s servers or by the servers of a third party mutually agreeable to the parties and specified in the IO. Company shall pay Publisher for services per the terms of each Campaign. Company shall pay any amounts due as set forth in the applicable IO or if no payment date is set forth in the applicable IO, then approximately fifteen (15) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of these Terms, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Company shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Company will not pay for any events that occur before a Posting Program is initiated, or after a Posting Program terminates. Invoices submitted to Company and payments made to Publisher shall be based on the events as reported by Company. Company will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. Company will require a Publisher to provide a W-9, and similar such information, as a condition to payment.
- Monitor and Inactivation. Company actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Fraud traffic includes but is not limited to, click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; ONLY click or Lead generation programs generating clicks or Leads with no indication by site traffic that it can sustain the clicks or Leads reported; fraudulent Leads as determined and reported by Advertisers; used any incentives to procure clicks or Leads; provided Leads obtained other than through intended consumer action without prior written approval of Company. (For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior.); use of fake redirects, automated software, and/or other fraudulent mechanisms to generate events from the Posting Programs. If Publisher fraudulently adds Leads or clicks or inflates Leads or clicks by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by Company or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Company, Publisher will forfeit its entire commission for all programs and its account will be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
- Adware and Spyware Prohibited. Publisher shall at no time, engage in, disseminate, promote or otherwise distribute, any Company Publisher-related marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Publisher and any of its business Publishers, publishers, etc. In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise distributing, any Company Publisher-related contextual marketing campaign which results in a violation of these Terms or any IO, then Company may, in its sole discretion, terminate these Terms and/or IO and immediately halt any and all Company Publisher-related contextual marketing campaigns, making payment only on legitimate earnings of Publisher as accrued through the date and time of termination. Publisher agrees and acknowledges that if it violates its obligations under these Terms and/or IO, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.
12. Limitations of our Liability
UNDER NO CIRCUMSTANCES WILL ANY BOSS LEADS PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
- the Site (including the Content, User-Generated Content, or Platform);
- your use of or inability to use the Site, or the performance of the Site;
- any action taken in connection with an investigation by Boss Leads Parties or law enforcement authorities regarding your access to or use of the Site;
- any action taken in connection with copyright or other intellectual property owners or other rights owners;
- any errors or omissions in the Site’s technical operation; or
- any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Boss Leads Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Site).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BOSS LEADS PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID BOSS LEADS IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
13. Security; Confidentiality
- Security. Publisher shall ensure that all Publisher websites and all consumer information collected thereon shall be secure and will use administrative, technical and physical safeguards in compliance with federal standards and standards generally accepted in the industry to ensure the security and confidentiality of all information collected by Publisher, to protect against anticipated threats or hazards to the security or integrity of such information, and to protect against unauthorized access to or use of such information. Publisher shall immediately notify Company in the event of a security breach or a threatened security breach relating to the Publishers performance of Services under these Terms and shall cooperate in good faith to resolve any such security breach promptly thereafter.
- Confidentiality. “Confidential Information” means the terms of any agreement or IO entered into between you and Company (collectively, the “Agreement”), and any technical, marketing, financial, employee, planning, and other confidential or proprietary information, including customer and supplier lists, the suppression or do not mail lists provided by Company or Advertisers to Publisher, and any information that: (i) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Confidential Information does not include information that: (i) is or has been independently developed by the receiving party without access to or use of the other party’s Confidential Information; (ii) is or has become publicly known through no breach by the receiving party of the Agreement between the parties; (iii) has been rightfully received from a third party authorized to make such disclosure; or (iv) has been approved for release in writing by the disclosing party. Each party agrees that: (i) it will not disclose to any third party or use the Confidential Information of the other party except as expressly permitted in the Agreement, where required by law or judicial process, or with the other party’s prior written consent and provided that the party to whom the information will be disclosed has agreed to confidentiality restrictions no less stringent than those herein contained; and (ii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own Confidential Information. Each party shall promptly notify the other of any request or demand by any court, governmental agency, or other individual or entity asserting a demand or request for Confidential Information, so that such party may seek an appropriate protective order. If a party or any of its employees, representatives or agents attempts to use or disclose any of the Confidential Information in contravention of the Agreement, then, in addition to other available remedies, the party who owns the Confidential Information shall have the right to seek injunctive relief enjoining any such attempt, it being acknowledged that legal remedies are inadequate. Upon the earlier to occur of termination of the Agreement or the request of the disclosing party, the receiving party shall destroy or return all of the disclosing party’s Confidential Information to the disclosing party. Notwithstanding anything to the contrary herein, nothing in this section shall limit Publisher’s obligations or permit disclosures by Publisher that are prohibited elsewhere in the Agreement. This Section shall survive the termination of the Agreement and these Terms.
14. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY BOSS LEADS (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF BOSS LEADS.
15. Updates to Terms
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SITE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SITE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SITE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms of service and any applicable Additional Terms each time you use the Site (at least prior to each transaction or submission). The new terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the terms of service (and any applicable Additional Terms) that applied when you previously used the Site will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page, and the email you associated with your purchases for notices, all of which you agree are reasonable manners of providing you notice. You can reject any new, revised or Additional Terms by discontinuing use of the Site and related services.
16. General Provisions
- Boss Leads’ Consent or Approval. As to any provision in these Terms or any Additional Terms that grants Boss Leads a right of consent or approval, or permits Boss Leads to exercise a right in its “sole discretion,” Boss Leads may exercise that right in its sole and absolute discretion. No Boss Leads consent or approval may be deemed to have been granted by Boss Leads without being in writing and signed by an officer of Boss Leads.
- Applicable Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of California, without regard to its conflicts of law provisions.
- Indemnity. You agree to, and you hereby, defend, indemnify, and hold Boss Leads Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Boss Leads Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Platform, the Site and your activities in connection with the Site; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Boss Leads Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Boss Leads Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Boss Leads Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Boss Leads Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Boss Leads Party.
- Operation of Site; Availability of Products and Services; International Issues. Boss Leads controls and operates the Site from its U.S.-based offices in the U.S.A., and Boss Leads makes no representation that the Site is appropriate or available for use beyond the U.S.A. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service, or other feature described or available on the Site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
- Export Controls. Software related to or made available by the Site may be subject to export controls of the U.S.A. No software from the Site may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls, including as set forth in subsections (i) – (iii) above.
- Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation.”
- Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Investigations; Cooperation with Law Enforcement; Termination; Survival. Boss Leads reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by Boss Leads in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Site, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Boss Leads under these Terms or any Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Boss Leads, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Boss Leads in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
- Assignment. Boss Leads may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Boss Leads.
- No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or Boss Leads in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
- Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Site and you will be responsible for all charges related to them.
Boss Leads LLC
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