TERMS AND CONDITIONS
This Terms and Conditions (“Agreement”) is an agreement between RJR Technology, LLC dba LeadPerfection (“RJR”) and the party signatory to an order form with RJR (“Customer”, “Client”, “Member”, “you”, “your”), and applies to all services (“Services”) ordered by Customer from RJR.
BY SIGNING THE LEADPERFECTION ORDER FORM OR OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE. YOUR CONTINUED USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Service Usage Policy
Under this Agreement, Customer shall comply with RJR’s then current Service Usage Policy, located on our website at https://www.leadperfection.com/serviceusagepolicy/
Policy Amendments and Modifications
RJR may amend the terms of this Agreement or the Service Usage Policy at any time in its sole discretion. Your continued use of the Services following notice of any amendment to the terms of this Agreement or the Service Usage Policy shall constitute your consent to the amended terms.
Service Modifications
RJR reserves the right to change its service offerings by adding, deleting, suspending, or modifying the Services at any time, and to determine whether and when any such changes apply to both existing and future customers. Your continued use of the Services following any such change(s) shall constitute your consent to such change(s).
Term and Renewals
Services will commence on the date of the account order form (“Order Form”) and continue for a monthly or annual term as Customer has chosen therein (the “Initial Term”).
Thereafter, the term of this Agreement will automatically renew for successive terms of equal length as the Initial Term (“Renewal Term”, and together with the Initial Term, the “Term”), unless, by written notice, the Agreement is terminated by either party at least 30 days prior to the start of the upcoming Renewal Term. Any such termination shall be effective as of the end of the extant Initial Term or Renewal Term.
Termination
Prior to the end of the Initial Term or any Renewal Term, RJR, by written notice to Customer, may terminate this Agreement, (i) if RJR learns that rendering the Services is unlawful, or (ii) for any reason or no reason. In addition, prior to the end of the Initial Term or any Renewal Term, RJR, by written notice to Customer, may terminate this Agreement (and each such event shall be called a “Termination for Cause”): (a) if it becomes impractical or unfeasible for RJR to render the Services to Customer for any technical, legal, or regulatory reason, (b) as part of a Corrective Action, (c) if Customer fails to make a payment when due and such payment (and any late fees and related expenses described herein) is not made within 15 days after receiving written notice from RJR (iv) Customer fails to perform any other term of this Agreement and such failure is not cured within 15 days after receiving written notice from RJR; or (d) if Customer files for bankruptcy, makes an assignment for the benefit of creditors, or is in receivership. If RJR terminates this agreement as a result of Termination for Cause, RJR shall be entitled to recover from Customer any costs, expenses or fees (including attorneys fees) incurred in attempting to recover sums properly owed by Customer hereunder, and such term shall survive termination of this agreement.
Prior to the end of the Initial Term or any Renewal Term, Customer, by written notice to RJR, may terminate this Agreement: (i) if RJR files for bankruptcy, makes an assignment for the benefit of creditors, or is in receivership; or (ii) if RJR fails to perform any of the terms of this Agreement and such failure is not cured within 15 days after receiving written notice from Customer; (iii) within 15 days of Customer’s receipt of a notice from RJR stating its intention to increase the Service Fee.
Upon termination of this Agreement by either party, RJR shall be entitled to compensation for all Services rendered prior to the date of termination.
Fees, Taxes, and Payment
Services are provided on a pre-pay basis. Customer will pay to RJR the Fees in accordance with RJR’s fee schedule which is listed below. All Fees are fully earned when due and non-refundable when paid. Service Fees for any Renewal Term shall be due immediately upon the first day of the Renewal Term. Customer consents to RJR charging all Fees to the credit card (or ACH account) on file. All payments shall be made in US Currency. If any credit card is declined for any reason, RJR will charge the Customer an additional $10.00 service charge every time the card is declined. In the case of a chargeback, RJR will immediately suspend the site until the matter is resolved and RJR will bill Customer $50.00 per credit card chargeback received. In the case of returned ACH charges, RJR will bill the customer $50 per incident.
If any invoice is not paid when due, RJR will impose interest at the rate of one-and-one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, until payment is made. If payment is not made ten (10) calendar days after payment is due, RJR may charge Customer a late fee of $100.
RJR may, upon 30 days’ written notice to Customer, amend the Service Fee schedule for future billing periods. Additionally, once every calendar year, the Service Fee for any Term may be increased without notice by up to 5% in RJR’s sole discretion (the “Inflation Adjustment).
Account Reactivation
There is a $200 charge to reactivate accounts that have been suspended or terminated. RJR reserves the sole discretion to determine whether to reactivate a terminated or suspended account.
Summary of Current Fee Schedule (together, the “Fees”)
- Monthly or annual Service Fee and one-time fees as indicated on the Order Form
- $10 fee per incident for declined credit card payments
- $50 per incident credit card or ACH charge back fee
- $100 per incident late fee
- $200 reactivation fee for suspended accounts
- Text messaging overage fees, if any, based on number of texts
- Credit Fees, as applicable, as stated on the Order Form
Hardware and Software
Customers are responsible for and must provide all phones, phone and Internet connectivity services, computers, software, hardware, and other services necessary to access RJR servers and Services or the servers and services of its hosting partners. RJR makes no representations, warranties, or assurances that customer’s equipment will be compatible with RJR Services.
CPU Usage
Customer agrees that they will not use excessive amounts of CPU processing on any of RJR’s or RJR hosting partner’s servers. Any violation of this policy may result in corrective action (“Corrective Action”) by RJR, which may be taken in RJR’s sole discretion with or without notice.
Bandwidth and Disk Space Usage
Customer agrees that they shall not exceed the allotted limits for monthly bandwidth and disk space as set forth during the Order or subsequent addon purchase of additional server resources. RJR monitors Customer server resource usage and has the right to take Corrective Action, if the Customer’s server resource usage exceeds the agreed upon limits or adversely affects other customers. If RJR must take Corrective Action, Customer shall not be entitled to refunds of any paid Service Fees.
Government Regulations
Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated items or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.
RJR Intellectual Property
RJR grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable RJR technology solely for the purpose of accessing and using the Services. Customer may not use the RJR technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from RJR to Customer any RJR technology, and all rights, titles and interests in and to the RJR technology shall remain solely with RJR. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the RJR technology. RJR’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of RJR. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of RJR.
RJR will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by RJR to Customer. RJR may, in its sole discretion, change or remove any and all such Internet Protocol numbers and addresses.
Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to RJR relating to the Services will be treated as being non-confidential and non-proprietary. RJR may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.
Disclaimer of Warranty
Customer agrees to use all Services and any information obtained through or from RJR, at Customer’s own risk. Customer acknowledges and agrees that RJR exercises no control over, and accepts no responsibility for, the content of the information passing through RJR’s host computers, network, or the Internet. THE SERVICES ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NONE OF RJR, ITS PARENT, SUBSIDIARY OR AFFILIATED COMPANIES, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, LICENSORS OR THE LIKE (“RJR PERSON”) MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT RJR PROVIDES. NO RJR PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. RJR IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S USERS VIA THE SERVICES PROVIDED BY RJR. NO ADVICE OR WRITTEN INFORMATION GIVEN BY ANY RJR PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement. The foregoing does not affect any warranties that cannot be excluded or limited under applicable law.
Indemnification
To the fullest extent permissible under applicable law, You agree to indemnify, defend and hold harmless RJR and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (“Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings, and expenses (including attorney fees) threatened, alleged, asserted, or filed by a third party against any of the Indemnified Parties arising out of or relating to (i) Customer’s use of the Services, including violation of the Telephone Consumer Protection Act (TCPA), (ii) any violation by Customer of the Service Usage Policy, (iii) any breach of any representation, warranty, or covenant of Customer contained in this Agreement, or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.
Limitation of Liability
Customer agrees that neither RJR nor any of its employees or its affiliates, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to RJR at the time) which may exist in the Services or RJR’s equipment used to provide the Services.
Under no circumstances, including negligence, shall RJR or any of its employees or its affiliates be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its users, or any other third party, or any claim of or related to interruption of business services, whether in an action in contract or tort or strict liability or other legal theory, even if RJR has been advised of the possibility of such damages.
Neither RJR nor any of its employees shall be liable to Customer, any of its users, or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, intrusion, theft, destruction or unauthorized access to RJR’s records, programs, equipment, or services.
IN NO EVENT WILL RJR’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE ACTUAL SERVICE FEES PAID TO RJR BY CUSTOMER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
RJR CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. RJR WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.
Customer understands, acknowledges and agrees that if RJR takes any corrective action under this Agreement because of an action of Customer or its website users, Customer agrees that RJR shall have no liability to Customer due to such corrective action by RJR.
The terms of this section shall survive any termination of this Agreement.
Notice
Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing. Each Party shall deliver all Notices (a) by personal delivery, or (b) nationally recognized overnight courier, or certified or registered mail to the address specified below, in which case such notice shall be effective when sent, or (c) solely in the case of a notice of a chance in price, by email to the email address indicated below, in which case such notice shall be effective when sent.
If to Customer:
to the physical address or email address provided on the LeadPerfection Order Form.
If to RJR:
RJR Technology, LLC
c/o Bylte, LLC
Attn: Legal MSA Notices
2990 Ponce de Leon Blvd, 6th Floor
Coral Gables, Florida 33134
With copy to: Legal@Bylte.com
Force Majeure
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, electronic intrusion, acts of war or terrorism, ransom or ransomware, acts of government or other legal order, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
Governing Law, Jurisdiction, and Dispute Resolution
This Agreement shall be governed in all respects by New York law without regard to the conflict of law provisions thereof. Any dispute relating to or arising under this Agreement shall be resolved by a legal action brought exclusively in a state or federal court located in Nassau County, New York, and each of the parties hereto expressly consents to the exercise of personal jurisdiction by such court and waives any objection to personal jurisdiction or venue. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs and reasonable attorney’s fees. The terms of this section shall survive any termination of this Agreement.
Independent Contractor
RJR and Customer are independent contractors and nothing contained in the Agreement places RJR and Customer in the relationship of principal and agent, partner or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party.
Assignment and Successors
Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of RJR. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. RJR may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Entire Agreement and Severability
This Agreement represents the entire agreement between the parties, and supersedes all previous agreements.
All rights and restrictions contained in the Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
Customer hereby represents that they are either, an individual entering this Agreement for their personal use and is of legal age to execute this Agreement, or a corporation, limited partnership or other legal entity, validly existing under the laws of the state of its organization and the person acting on behalf of Customer is authorized to execute this Agreement on behalf of Customer.
