Effective Date March 1, 2018
Agreement to Terms
Please note that these Terms include a class action waiver, a disclaimer of warranties, a disclaimer of liability, as well as a release and indemnification by you.
Changes to Terms. Any changes to the Terms will be effective immediately upon posting. Please review the Terms each time you use the Services as your continued use of the Services after such changes will constitute acceptance of, and agreement to, such changes. You further waive any right you may have to receive specific notice of such changes.
Consent. You affirm that you are at least 18 years of age and are fully able and competent to enter into, and comply with, these Terms. If you are accessing and using the Services on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to these Terms. In that situation, “you” and “your” will refer to both you and that entity.
Services We Provide. Leadbird provides data-driven event-based leads (“Leads”) for use by commercial businesses to reach and market to new-to-the-world businesses based in the United States. Our Leads help large as well as small and medium sized businesses (“SMB”) grow their customer base by delivering timely prospects based upon the SMB’s location and industry. Our Services will be made available on both mobile and desktop platforms for our registered users. Registered users who subscribe to our Services (“Subscribers”) will be able to act on our Leads by sending a custom or template driven direct mailer(s) or email offers from within the platform. Tiered Subscribers are offered additional discounts, automation, and an increase in available Leads.
No Endorsement and Estimates. Leadbird does not sponsor, endorse, recommend or approve any SMB who offers products or services through the Services. Additionally, while we try to validate and verify our Leads, we cannot and do not represent or warrant the accuracy of our Leads or that they will in fact lead to new customers or increased revenue. Reference to any products, services or other information by trademark, manufacturer, supplier or otherwise does not constitute or imply an endorsement, sponsorship or recommendation by us. All non-Leadbird trademarks, product names and logos appearing on our Services are property of their respective owners.
Third Party Materials. The Services may contain links to third party websites, advertisements, services, offers, activities or other content (collectively, “Third Party Materials”). These Third Party Materials are not owned or controlled by Leadbird. These Third Party Materials are provided for your reference and convenience only, and do not imply any endorsement, sponsorship or recommendation by Leadbird.
Permissible Use and Leadbird Intellectual Property
Grant of Limited License. Subject to these Terms, we hereby grant you a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to access and use the Services for personal, non-commercial and informational use only. If you are a business acting in a commercial capacity, we hereby additionally grant you a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to access and use the Services for the purpose of marketing your services to our Leads including new businesses, one and two year old businesses as well as providing information about your services to current members of the platform, and as contemplated by, the Services.
Leadbird Services are Protected. The Services, including all material and information, and the selection, arrangement and composition of such data or information (“Materials”) are proprietary property of Leadbird, its suppliers, and licensors and are protected by United States and international intellectual property laws, including trademark and copyright laws. You agree not to remove, alter or obscure any copyright, trademark or proprietary rights notice incorporated in or accompanying the Services. Except for the limited license explicitly granted to you under these Terms, no other license is granted to you, whether by implication, estoppel or otherwise and all rights are explicitly reserved.
No Reverse Engineering. You may not reverse engineer, decompile or disassemble the Services (except to the extent specifically permitted by applicable law).
No Automated Queries. You may not use automated web queries (including, without limitation, screen and database scraping, spiders, robots, crawlers and any other automated activity in connection with the Services); provided, however, that general purpose Internet search engines and non-commercial public archives that use tools to gather information for the sole purpose of displaying hyperlinks to the Services are granted a limited exception from the foregoing exclusion, provided that they do so from a stable IP address or range of IP addresses using an easily-identifiable agent.
No Improper Uses. You may not frame any part of our Services. You may not use, or attempt to use, the Services through any means not explicitly and intentionally made available, provided or intended with respect to the Services. You may not harvest information about users of the Services for any purpose. You may not use the Services in any manner that could damage, disable, overburden, or impair the Services or that harms Leadbird, its service providers, suppliers or any other person.
Accurate Information. You agree to provide us with accurate, complete and up to date information and you agree to update such information to keep it accurate, complete and up to date. You agree you won’t disclose your password to anyone and you’ll notify us immediately of any unauthorized use of your account. You are responsible for all activities that occur in your account, whether or not you know about them.
You Are Responsible for User Submissions. The Services may permit the submission of text, photos, videos, information, comments, reviews, feedback, notes, messages, ideas, concepts, know-how, techniques, or other communications submitted by you and other users (“User Submissions”). You shall be solely responsible for your own User Submissions and the consequences of submitting them.
License to User Submissions. By submitting User Submissions to Leadbird, you grant Leadbird a worldwide, non-exclusive, royalty-free, fully paid, perpetual, irrevocable, and fully sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, publish, broadcast, publicly perform, make, use, import, offer to sell, sell, and otherwise transfer and exploit all copyrights, inventions, and other intellectual property rights in the User Submissions in all media. We will not pay you or otherwise compensate you for any User Submissions you provide to Leadbird.
Do Not Post Illegal or Harmful Content. You agree not to post, submit or link to any User Submissions or material that infringes, misappropriates or violates the rights of any third party (including intellectual property rights), or that is in violation of any federal, state or local law, rule or regulation. Additionally, you agree not to post, submit or link to any User Submissions or material that is deceptive, fraudulent, threatening, harassing, defamatory, obscene or otherwise objectionable as determined by Leadbird.
Do Not Post Improper Content. You agree not to post, submit or link to any User Submissions or material that (i) directly or indirectly directs persons to another online or offline location that provides products or services similar to the Services; (ii) involves unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; or (iii) facilitates gambling, gaming, raffles, lotteries, sweepstakes, and/or any other activity featuring the award of a prize.
Reviews of SMB’s. You may only post a review of a SMB if you have first-hand knowledge of the services provided by such SMB. You may not post or submit a review of a SMB if you are (i) an employee, contractor, partner or otherwise affiliated with, such SMB, (ii) an employee, contractor, partner or otherwise affiliated with, a competitor of such SMB, or (iii) related to such SMB.
Review of User Submissions. We do not approve, control or endorse your or anyone else’s User Submissions and have no obligation to do so. However, we reserve the right (but assume no obligation) to remove or modify User Submissions for any reason, at our sole discretion.
Provisions Applicable to Leadbird Subscription and Premium Services
In addition to all of the other provisions of these Terms, the following provisions apply specifically and solely to businesses that purchase additional products or services from Leadbird as they become available (each, a “Subscription Product” or “Premium Product”).
Subscription Products; No Guarantee. Leadbird offers various Subscriptions tiers to our Subscribers including expanded geographical Leads, automated email and direct mailer campaigns. Subscribers may agree to sign up for professional or premium tiered services which will result in a commitment by the Subscriber to pay a monthly subscription fee until cancelled (“Subscription Terms”). Verification of the Subscribers commitment will be transmitted electronically by sending a confirmatory email detailing the term, date of service, method of cancellation, and the selection of any Premium Products (“Confirmatory Email”). If the Confirmatory Email misstates your understanding of our agreement, please notify us immediately in accordance with the terms set forth in such email.
Subscriber agrees and acknowledges that Leadbird cannot and does not guarantee the results of any Subscription or Premium Product, including the exposure you will receive as part of the Services or the number or quality of potential customers that will contact you.
Premium Products. Leadbird offers Subscribers the option to generate single, bulk and automated direct mailer pieces. Leadbird may outsource the printing of such direct mailer and will use the US postal service to drop ship the Subscribers mailers. Leadbird does not guarantee that each Direct Mailer piece will successful be received by the intended recipient. In addition, each business that intends to use Leadbird Premium Products will be required to pay a fee to send the direct mailers (including electronic mail) as part of the Service. The fee will vary based upon the Subscription Product selected by the business. Our subscription tiers establish a monthly cap on the total amount charged to Subscribers credit card which will include both their Subscription and Premium Products. Subscribers will be required to pre-pay for all Premium Products and thereby must have an existing credit in place before any direct mail (including electronic mail) is sent within the Service (“Premium Product Pre-Payment”).
Term. The “Initial Term” of a Subscription Product begins on the first day the Subscription Product is made available to the business and continues for the length of time specified in the Confirmatory Email. After the Initial Term, if a Subscription Product has not been terminated, it will automatically renew for successive Renewal Terms (as defined below) until terminated by the Subscriber. A “Renewal Term” is a length of time specified in the Confirmatory Email (e.g. monthly, quarterly, biannually, or annually). Termination of the Initial Term or the then current Renewal Term must be in accordance with the termination procedure below.
Payment. A Subscriber authorizes Leadbird to bill their credit card on the first day of the Initial Term and thereafter during the Initial Term as specified in the Confirmatory Email. For example, if the Confirmatory Email specifies an Initial Term of one year with payment monthly, then the Subscribers credit card would be billed the specified monthly amount plus any selected Premium Product Pre-Payment on the first day of the Initial Term and the same day of every month thereafter during the Initial Term. And, if the Confirmatory Email specifies an Initial Term of one year with prepayment, then Subscribers credit card would be billed the total specified yearly amount on the first day of the Initial Term and Subscriber would not be billed thereafter for any Subscription Products (excluding any Premium Product Pre-Payments) during the Initial Term.
In addition, Subscriber authorizes Leadbird to bill their credit card on the first day of each Renewal Term in the amount specified in the Confirmatory Email. For example, if the Confirmatory Email specifies a monthly Renewal Term, then Subscribers credit card would be billed the specified monthly amount plus the Premium Product Pre-Payment on the first day of each month thereafter. And, if the Confirmatory Email specifies a quarterly Renewal Term, then Subscribers credit card would be billed the specified quarterly amount plus the Premium Product Pre-Payment on the first day of each quarter thereafter.
You agree to notify Leadbird of any changes to your credit card information necessary to process your payment. If Leadbird is unable to process the payment, Subscriber will be responsible for making an alternate payment arrangement and any resulting processing fees that may be incurred. Any prepaid amounts are not refundable, except as specifically described in these Terms.
Late Fees and Billing Issues. Subscriber agrees to pay a late fee of 1% per month (or the highest rate permitted by applicable law, if less) for any late payments. Subscriber also agrees to pay reasonable expenses (including collection agency fees and attorney’s fees) incurred by Leadbird in collecting any unpaid amounts. Subscriber agrees to notify Leadbird of any billing discrepancies or issues within 20 days after they first appear, and if not, Leadbird agrees that Subscriber has waived the right to dispute such billing discrepancies or issues.
Termination. To terminate a Subscription or Premium Product effective as of the last day of the Initial Term or the last day of the then current Renewal Term, you must notify us at least (1) day prior to such last day by sending an email to email@example.com and provide your account information for reference. A Subscription or Premium Product may only be terminated with an effective date on the last day of the Initial Term or then current Renewal Term (as applicable) and not before such date.
Leadbird may terminate a Subscription or Premium Product immediately by providing written notice to you (either by email or letter). If termination is by Leadbird as a result of your material breach of the Terms, you will not be entitled to a refund of any previously paid amount. If termination is by Leadbird for convenience, you will receive a pro rata refund of any prepaid but unused amount with respect to the terminated Subscription or Premium Product.
Claims of Copyright Infringement
If you believe that your work has been reproduced in connection with the Services in a manner that constitutes copyright infringement, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing: (i) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest, (ii) identification of the copyrighted work claimed to have been infringed, (iii) a description of where the material that you claim is infringing is located within the Services, (iv) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address, (v) a signed statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a signed statement that the information in the notification is accurate, and under penalty of perjury, that you are the copyright owner or you are authorized to act on behalf of the owner
Notification pursuant to the DMCA should be submitted to:
Snowcap Data NY, Inc. d/b/a Leadbird
Attn: Leadbird Legal Department
315 W. 36th Street
New York, NY 10018
YOU AGREE THAT YOU BEAR ALL RISK AND YOU AGREE TO AND DO HEREBY RELEASE LEADBIRD, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, LICENSORS, LICENSEES AND SUPPLIERS (COLLECTIVELY, THE “LEADBIRD PARTIES”) FROM ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, NOW AND IN THE FUTURE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SERVICES, YOUR USE OF, OR TRANSACTIONS WITH, SMBS OR OTHER THIRD PARTIES . YOU FURTHER WAIVE ANY AND ALL RIGHTS AND BENEFITS OTHERWISE CONFERRED BY ANY STATUTORY OR NON-STATUTORY LAW OF ANY JURISDICTION THAT WOULD PURPORT TO LIMIT THE SCOPE OF A RELEASE OR WAIVER.
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, THE LEADBIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE IN CONNECTION WITH THE SERVICES AND YOUR USE OF OR TRANSACTIONS WITH SMBS OR OTHER THIRD PARTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, SECURITY, ACCURACY, AVAILABILITY, USE OF REASONABLE CARE AND SKILL, AND NON- INFRINGEMENT, AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE.
Limitation of Liability
IN NO EVENT SHALL THE LEADBIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF, BASED ON, OR RESULTING FROM YOUR USE OF THE SERVICES AND YOUR USE OF, OR TRANSACTIONS WITH, SMBS OR OTHER THIRD PARTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LEADBIRD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IN NO EVENT WILL THE COLLECTIVE LIABLITY OF THE LEADBIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES, AND YOUR USE OF, OR TRANSACTIONS WITH, SMBS OR OTHER THIRD PARTIES EXCEED THE AMOUNT YOU HAVE PAID TO LEADBIRD FOR USE OF THE APPLICABLE SERVICES IN THE PRECEDING TWELVE MONTH PERIOD OR TEN DOLLARS, IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO LEADBIRD, AS APPLICABLE.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE LEADBIRD PARTIES FROM AND AGAINST ANY CLAIMS, DISPUTES, LOSSES, OBLIGATIONS, DEMANDS, LIABILITIES, EXPENSES, DAMAGES, COSTS, AND ATTORNEY’S FEES DUE TO OR ARISING OUT OF (1) YOUR ACCESS TO OR USE OF THE SERVICES, (2) YOUR USE OF, OR TRANSACTIONS WITH, SMBS OR OTHER THIRD PARTIES, OR (3) YOUR VIOLATION OF ANY OF THESE TERMS. LEADBIRD RESERVES THE RIGHT, AT ITS OWN COST AND SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH LEADBIRD IN ASSERTING ANY AVAILABLE DEFENSES.
Assignment. These Terms, and any rights and licenses granted hereunder, may be transferred or assigned by you only with Leadbird’s prior written consent, but may be assigned by Leadbird without restriction and without notice to you.
Export Control. Software and the transmission of applicable technical data, if any, in connection with the Services may be subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
Governing Law. You agree that these Terms and the Services shall be governed solely by United States and New York law, without regard to conflict of law provisions. Any claim or dispute between you and the Leadbird Parties that arises in whole or in part from the Services, Terms or any relationship between us, shall be decided exclusively by a court of competent jurisdiction located in New York County, New York. You further irrevocably agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of resolving all such claims or disputes.
Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION. YOUR ACCESS AND CONTINUED USE OF THE SERVICES SIGNIFIES YOUR EXPLICIT CONSENT TO THIS WAIVER.
Entire Agreement and Severability. These Terms constitute the entire agreement between you and Leadbird concerning the Services and supersede all prior or contemporaneous communications of any kind between you and Leadbird with respect to the Services. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction, to be invalid, void, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect.
Waiver. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Leadbird’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Modification of Services. We reserve the right to modify, restrict access to, or discontinue the Services (or any portion of the Services), temporarily or permanently, with or without notice to you, and are not obligated to support or update the Services. Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to these Terms.
Termination. We reserve the right, with or without notice, and in our sole discretion, to terminate any license to the Services, in whole or in part, and to block or prevent future access to and use of the Services.
Third Party Beneficiaries. These Terms do not create any right of action on the part of any third party, except for the Leadbird Parties and suppliers or others who are party to written agreements with us explicitly giving them third party beneficiary rights.
Attorney Fees. If the Leadbird Parties take legal action against you as a result of your violation of these Terms, the Leadbird Parties will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to the Leadbird Parties.
Contact Us. If you have questions, please contact us by email at firstname.lastname@example.org or in writing at 315 W. 36th Street, New York, NY 10018.
Leadbird. All rights are protected.