Online REI Lead Finder Software (OLF)
SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE SOFTWARE.
BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS
LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE
SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE
SOFTWARE FOR A REFUND.
Online REI Lead Finder Software (Online REI Lead Finder)
develops, maintains, and licenses access to, a pc based lead generation
software solution for businesses, marketers, and entrepreneurs; and
real estate investors.
wishes to use Online REI Lead Finder SOFTWARE and obtain such related services, and Online REI Lead Finder desires
to provide such services to Customer; and
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1.1 Definitions. For purposes of
this Agreement, the definitions set forth below shall be applicable:
means an individual who is an employee or contractor of Customer
who is acting within the scope of a formal employment or agency relationship
and who agrees to be bound by the terms of this Agreement.
“Front End Code” means the user interface
display and usability platform. This includes but is not limited to the layout,
color scheme, HTML pages and source code etc.
“Back End Code” means the Online REI Lead Finder SOFTWARE
application specific source code. This includes but is not limited to the
database schema, field definitions, table relationships, marketing automation,
work flow management, application methodology and interface coding etc.
OWNERSHIP AND USE
Grant of License. Subject to the terms
and conditions of this Agreement, Online REI Lead Finder hereby grants to Customer and Customer
hereby accepts a nonexclusive, nontransferable license to establish Online
Access to the Online REI Lead Finder SOFTWARE to perform business
functions as the Software is designed to perform.
2.2 Title. Online REI Lead Finder shall retain all
right, title, and interest (including all copyrights, patents, service marks,
trademarks and other intellectual property rights) in and to Online REI Lead Finder SOFTWARE,
including any and all updates, enhancements, customizations, revisions,
modifications, future releases and any other changes thereto, and all related
information, material and documentation, etc. Except for the license granted
pursuant to this Agreement, Customer shall
not acquire any interest in the Online REI Lead Finder SOFTWARE Software or any other services or
materials, or any copies or portions thereof, provided by Online REI Lead Finder pursuant to this
Ownership of prospect, customer and employee Data. Any
Company-specific Data provided to Online REI Lead Finder hereunder, either in hard copy or
electronic format is and shall remain Customer’s property.
2.4 Online REI Lead Finder intellectual property ownership and
restrictions to product use. Online REI Lead Finder
shall retain all rights to proprietary application development, business and
technical methodologies, implementation, business processes and all other
aspects of OLF business, application(s) and services. Under no circumstances,
will the Customer be permitted to use any Front or Back End Code to their
advantage (or) the advantage of their partner company’s (or) potential partner
company’s outside of the intended design and implementation for which the
original service subscription agreement was executed. The technology and
business methodologies are proprietary and the sole property of Online REI Lead Finder. Any
technology or business replication of any aspect of the application or services
provided used for the gain of the Customer or above mentioned business partners
or for the use of any level of a competitive nature regarding these proprietary
elements is strictly prohibited.
3.1 Fees. In
consideration of the license granted pursuant to Section 2.1, and for the
Services, Customer shall pay The Wierman Group the fees as specified on the Customer’s
original Invoice (the “Fees”). The Wierman Group shall
invoice Customer for the Licensing, Setup, and Implementation Fees immediately
upon execution of this Agreement. These fees shall be paid at the execution of
this agreement. Thereafter, The Wierman Group may invoice Customer on a pre-paid monthly
basis for monthly membership charges. All charges for Fees shall be due and
payable to The Wierman Group within ten-days (10) of the date of each invoice. Any charges
not paid when due are subject to interest at a rate equal to the lesser of: (i)
one and one-half percent (1.5%) per month; or (ii) the maximum interest rate
allowed by applicable law.
4.1 Confidentiality. Each
party agrees that the company associated Data (referred to herein as the
“Customer Confidential Information”) and any and all materials, documentation
and information pertaining to the The Wierman Group SOFTWARE and the Services (referred to
herein collectively as the “The Wierman Group Confidential Information”) is the confidential
property of Customer and The Wierman Group, respectively
(Customer Confidential Information and The Wierman Group Confidential Information referred
to hereinafter collectively as the “Confidential Information”). The party
receiving the Confidential Information, including such party’s employees,
officers, directors and agents, (collectively, the “Receiving Party”) shall
hold in confidence all Confidential Information and shall not disclose or
distribute Confidential Information, or any portion thereof, in any form or
format to any person except on a strict “need to know” basis for the purpose of
performance of this Agreement, or as required by valid legal process. Customer
agrees it shall not copy, alter, decompile, disassemble, reverse engineer, or
otherwise modify (except with The Wierman Group’s prior written consent) or directly or
indirectly disclose any The Wierman Group Confidential Information. Confidential Information
under this Section 4 shall not include information that: (i) is or has become
publicly available without restriction through no fault of the Receiving Party;
or (ii) has been received without restriction from a third party lawfully in
possession of such information.
TERM & TERMINATION
5.1 Term. The term
of this Agreement begins on the Effective Date and shall continue for a period
of one (1)
year unless earlier terminated as provided for in this Section 5.
5.2 Termination Without Cause. Either
party may terminate this Agreement by providing 30 days written notice to the
5.3 Fees; Return of Data. In the
event of termination or expiration of this Agreement, all Fees due and payable
to The Wierman Group must be paid in full. At The Wierman Group’s election, upon its receipt of all such
Fees, or after notice of intent to terminate has been received by from the
Customer by The Wierman Group, The Wierman Group will make all company Data available for a period of 30
days and then remove Customer from the production environment.
5.4 Standard Marketing. Customer
reserves the right to use The Wierman Group name and credentials in an appropriate and
acceptable manner for standard marketing promotions. Equally, The Wierman Group reserves the
right to use Customer name and credentials in an appropriate and acceptable
manner for standard marketing promotions. Acceptable and standard marketing
promotions include but are not limited to: Client listings, press releases,
surveys, interviews, reputable business publications, television and web site
presentation and promotion etc.
warranties/LIMITATION OF LIABILITY/INDEMNITY
6.1 DISCLAIMER OF WARRANTIES. THIS
AGREEMENT IS AN AGREEMENT FOR SERVICES. NOTWITHSTANDING THE FOREGOING, The Wierman Group
SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE The Wierman Group SOFTWARE AND
SERVICES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 LIMITATION OF LIABILITY. NEITHER
PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA,
LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT
EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF THE
PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE,
TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. Notwithstanding
the foregoing, in no event shall The Wierman Group’s cumulative liability under this
Agreement exceed the amount actually paid by Customer to The Wierman Group in the
immediately preceding six (6) month period.
6.3 Customer Warranty.
Customer represents and warrants that it shall, at all times, comply with, and
shall remain solely responsible for compliance with, all applicable Federal,
State and Local laws and regulations. Customer shall indemnify and hold The Wierman Group
harmless from and against any and all damages, costs, losses, claims, causes of
action and lawsuits and expenses, including reasonable attorneys’ fees,
relating to breach of the aforementioned representation and warranty. Customer
represents and warrants that it shall fully comply with the The Wierman Group Acceptable Use
Policy, which is incorporated herein by reference.
Assignment of Agreement. Customer shall not assign its Rights or duties under this Agreement
without the prior written consent of The Wierman Group. This Agreement shall inure to the
benefit of the authorized successors and assigns of the parties.
7.2 Independent Contractor. The Wierman Group
is an independent contractor, and this Agreement does not in any way create the
relationship of principal and agent, franchisee, joint venture, or partnership
between the parties. Neither party shall be liable for any debts or obligations
of the other.
7.3 Entire Agreement; Precedence. This Agreement and Exhibits A
(which is attached hereto and incorporated herein by reference) contain the
entire understanding between the parties and supersede any prior verbal or
written agreement between the parties with respect to the subject matter
hereof. No amendment or modification of the Agreement shall be valid, unless
made in writing and signed by both parties hereto. In the event of any
inconsistency or conflict between the terms and conditions of this Agreement
and any term or condition of any Exhibit hereto, the terms and conditions of
this Agreement shall, in all instances, govern and control.
7.4 Governing Law. This
Agreement shall be governed by the laws of the State of Arizona without giving effect to conflict of
laws principles. The venue and jurisdictions shall be Gilbert, Arizona.
7.5 Arbitration. Any
and all disputes, controversies and claims arising out of or relating to this
Agreement or concerning the respective rights or obligations of the parties
hereto shall be settled and determined by arbitration before a panel of one (1)
arbitrator pursuant to the Commercial Rules of the American Arbitration
Association then in effect. The foregoing notwithstanding, each party shall
have no more than three (3) days to present its case to the arbitrator.
Judgment upon the award rendered may be entered in any court having
jurisdiction or application may be made to such court for a judicial acceptance
of the award and an order of enforcement. The parties agree that the
arbitrators shall have the power to award damages, injunctive relief and
reasonable attorneys’ fees and expenses to any prevailing party in such
arbitration. The venue and jurisdictions shall be Gilbert, Arizona.
7.6 Force Majeure. Neither
party hereto shall be in default hereunder by reason of its delay or failure to
perform any of its obligations hereunder for any event, circumstance, or cause
beyond its control such as, but not limited to, acts of God, strikes,
lock-outs, general governmental orders or restrictions, war, threat of war,
hostilities, revolution, acts of terrorism, riots, epidemics, fire, earthquake,
or flood. The performance of this Agreement shall then be suspended for as long
as any such event shall prevent the affected party from performing its
obligations under this Agreement.
7.7 Invalidity; Waivers. If
any provision or portion of this Agreement is held invalid, illegal, void or
unenforceable as it appears in this Agreement by reason of any rule of law,
administrative or judicial provision or public policy, then such provision
shall be construed as being enforceable to the extent such rule of law,
administrative or judicial provision or public policy allows. All other
provisions of this Agreement shall nevertheless remain in full force and
effect. Neither of the parties shall be deemed to have waived any of its
rights, powers or remedies hereunder unless the waiving party expresses such a
waiver in writing.
7.8 Survival of Terms. Notwithstanding
the expiration or earlier termination of this Agreement for any reason, the
provisions of Articles 4, 6, 7 and Sections 2.2 and 2.3 of this Agreement shall
remain in full force and effect.
Headings; Counterparts. Paragraph headings
used herein are for convenience purposes only and are not intended to be, nor
shall they be, used as an aid in interpretation. This Agreement may be signed
Acceptable Use Policy
products services provided by UREI Software may be used for lawful purposes
only. Transmission or storage of any information, data or material in violation
of any United States Federal, State or local law is strictly prohibited.
Customer agrees to indemnify and hold harmless UREI from any claims resulting
from Customer’s use of the service which damages Customer or any other parties,
including attorney’s fees.
not be liable for any interruptions in service or other monetary loss related
to a violation of this Acceptable Use Policy.
- Services Provided. Online REI Lead Finder provides Customer with lead generation utomation
software that creates email documents. All services provided
must be used by Customer in compliance with this Acceptable Use Policy.
- Customer Obligations.
Customer agrees to use Online REI Lead FInder services in a manner that is legal, ethical
and in conformity with community standards and to respect the privacy of
others. More specifically, Customer agrees to abide by OLF’s requirements
governing the use of the various components of Online Lead Finder services, as
- Violations and Penalties.
Customers who fail to comply with the terms of this Acceptable Use Policy
will be subject to the following penalties, including, but not limited to,
termination of service.
Complaints. A $50 administration fee will be immediately charged to
Customer’s account for each complaint of spam or unauthorized communication
that Online Lead Finder receives involving Customer’s account. This non-refundable
administration fee goes toward disputing the complaint with the complainant,
the reporting service or “black list” service, and resolving the complaint. One
“free” complaint per month will be allowed for each Customer.
of Complaints. Upon receiving a complaint, Online REI Lead Finder
will notify Customer of said complaint and investigate the validity of
the complaint. If Customer does not take immediate remedial action to
rectify the situation, we may temporarily suspend Customer’s service
until Customer has resolved the situation to our satisfaction.
Complaints. After the OLF notifies Customer
of a complaint involving his or her account, Customer will have the
burden of proof to demonstrate to OLF that the complaining individual
did, in fact, agree to receive communications from Customer. If Customer
cannot demonstrate to OLF that the complaining individual agreed to
receive communications from Customer, the complaint will be deemed a
“Confirmed Violation” of this Acceptable Use Policy.
Violations. A $250 administration fee will
apply, and termination of service may apply, in the event OLF
conclusively determines that Customer sent an unsolicited communication
to a recipient who did not agree to receive communications from Customer.
Widespread and/or Repeated Violations. In
accordance with its Zero Tolerance Spam Policy, OLF will immediately
terminate the account of any Customer found to be involved in a spam
campaign or other widespread or repeated violation of this Acceptable Use
Policy. Furthermore, such Customer will incur a $500 penalty and all
information contained in Customer’s account will be forfeit, with no
consideration of retrieval. Customer will be held accountable for any
monetary damages suffered by OLF, sustained through contravention of
this Policy. Such monetary damages may include, but are not limited to,
loss of Web/Domain host, any costs incurred securing further Web/Domain
hosting and punitive damages related to lost clients and revenues due to
said violation. The determination of what constitutes a “blatant,
widespread and/or repeated violation” of this policy will be determined
by OLF in a reasonable manner.
- Reservation of Rights. OLF reserves the right to terminate Customer’s account for any violation
of this Acceptable Use Policy. Furthermore, OLF reserves the following
Practices. OLF may terminate Customer’s
account if Customer engages in any practice that is, in OLF’s sole
discretion, unlawful, obscene, threatening, abusive, libelous or hateful,
or that encourages conduct which would constitute a criminal offense,
give rise to civil liability, or otherwise violate any local, state,
national or international law.
of Terms and Conditions. OLF reserves
the right to change the terms and conditions of this Policy, as needed.
Use of OLF’s services by Customer after said changes constitutes
Customer’s acceptance of the new Policy.
All Online REI Lead Finder customer account information is held confidential. We do
not sell our customer list or customer information to any other entities. Customer
information such as name, e-mail address, mailing address, phone number, fax
number and billing information is collected for the sole purpose of providing
services to our customers and notifying them of improvements to our products
From time to time, we will send special offers and promotional
notices via mail, e-mail, fax, and/or voice broadcast to our customers and to
prospects who have expressed interest and have requested such information. At
any time, customers may “opt-out” of such offers and notifications by following
the opt-out link on the specific offer received.
All leads generated by our customers and data stored for our
customers are held and protected in strict confidence using advanced security
measures. Each lead's information is kept only so that the customer’s marketing
messages may be sent to that lead. Online REI LeadFinder does not contact customer leads, nor do
we sell or share customers’ lead information with any other party.
All Online REI Lead Finder affiliate information, including address, phone number,
e-mail address, and Social Security or tax id number is confidential. This
information is collected for the purposes of: 1) generating commission checks
and 2) complying with United
States federal tax requirements.