Subject to this Agreement, and except as otherwise expressly set forth herein, We hereby grant You a non-exclusive, non-transferable, non-sublicensable right and license to download, access, implement and use the Widget as a website plug-in for the collection of basic information from consumers in connection with Your U.S. residential mortgage business only. You and We must each conduct ourselves in accordance with all applicable laws, including all privacy, mortgage lending and advertising laws and regulations. Each of us will be fully responsible to indemnify and hold harmless the other in the event of our failure to do so.
All leads generated through your use of the Widget are referred to in this Agreement as "Widget-Based Leads." All Widget-Based Leads fall into one of two categories:
(1) leads from potential customers of Yours with whom you choose to follow up, [either by affirmatively electing to do so through the Widget or by electing to do so] via pre-set screening methods (e.g., customers located in states in which You are licensed to lend and who require a mortgage greater than your minimum loan size) ("Category 1 Leads"); and
(2) leads from potential customers of Yours with whom you cannot do business (e.g., customers located in states in which You are NOT licensed to lend or with whom you affirmatively elect not to follow up through the Widget ("Category 2 Leads").
Information entered into the Widget by Category 1 Leads will be directed to You by the Widget, without any involvement by RQW.
Information regarding a Category 2 Lead will automatically be directed to RQW by the Widget, and RQW may, in its sole discretion, (a) contact such consumer (or permit a single licensed mortgage lender affiliated with RQW to do so) or (b) direct, license or sell information regarding such consumer to a single, reputable third-party lead broker service who has committed to provide such lead to a single, licensed mortgage lender. We will always use industry-standard encryption when handling such information. Upon request by any consumer who is a Category 2 Lead, we will disclose promptly the identity of the lead broker to whom his or her information has been or will be provided. You may not make any use of Category 2 Leads, such as referring them to other mortgage professionals.
Your implementation and use of the Widget must include the following statement to the consumer, which shall be readily accessible from a prominently-placed link on the widget home page: Please note that when you enter information into this widget, you are requesting and authorizing us to either:
(1) If we believe that we can help: Contact you by telephone and/or email to discuss whether we can assist you with your residential mortgage needs, or
(2) If we believe that we cannot help: Pass your information along to one other mortgage lender (an "Alternative Lender") directly or through a lead broker service. For example, if you live in a state where we are not licensed to lend, or if we do not offer loans that fit your needs and qualifications, we may pass your information on to a single Alternative Lender licensed in your state. If we do so, you are requesting and authorizing the Alternative Lender to contact you by telephone and/or email.
Please contact us if you have any concerns regarding any of this, prior to entering any information into the widget.
You may not sell, sublicense, or distribute the Widget.
You may not modify the Widget in any way, remove any trade dress or logos, or create derivative works based on the Widget. You may not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Widget.
You may not use the Widget in any manner that could damage, disable, overburden, or impair our website or servers or otherwise interfere with any other party's use and enjoyment of our website, servers or the Widget.
You may not use the Widget in any manner that implies affiliation with, sponsorship or endorsement by Us. You must place the Widget on a page that is context-appropriate to the content of the Widget. For example, You may place the Widget on pages of your web site that contain a discussion of personal finance, mortgages or residential real estate, but pages containing adult or pornographic content would not be context-appropriate. You may not place the Widget on any site that contains any content that is in any way unlawful, harmful, obscene, harassing, or racially, ethnically, or otherwise objectionable. Additionally, You may not place the Widget on any site that infringes any rights, or violates any applicable law.
You acknowledge that this Agreement does not convey any Intellectual Property Rights to You, with the exception of the limited license provided above. "Intellectual Property Rights" means any and all rights existing under copyright law, patent law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights. You also agree to not remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to, contained within, or accessed in conjunction with or through the Widget.
We reserve the right to modify, suspend or discontinue the Widget, or discontinue your license to use the Widget, at any time in our sole discretion, without liability to You. We may crawl or otherwise monitor Your website to verify compliance with this Agreement.
We hereby disclaim any responsibility for any harm resulting from Your use of the Widget. The Widget is provided "as-is", with no warranties whatsoever. We expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and noninfringement of proprietary rights. We expressly disclaim any warranties regarding the security, reliability, timeliness, uptime and performance of the Widget. You understand and agree that You use the Widget at Your own discretion and risk, and that You will be solely responsible for any damages that results from Your use of the Widget.
Under no circumstances shall We be liable to You on account of Your use or misuse of the Widget. Such limitation of liability shall apply to prevent recovery of direct, indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise (even if We have been advised of the possibility of such damages). Such limitation of liability shall apply whether the damages arise from use or misuse and reliance on the Widget, from inability to use the Widget, or from the interruption, suspension, or termination of the Widget.
The Disclaimer of Warranties and Limitation of Liability set forth above are fundamental elements of the basis of the Agreement between Us and You. We would not be able to provide the Widget on an economic basis without such limitations.
This Agreement is governed by and construed in accordance with the laws of the State of Ohio, without giving effect to any principles of conflict of laws. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, You and We agree that the court should modify such provision to the minimum extent necessary to render it enforceable and to carry out our intent as set forth in this Agreement, and the remainder of this Agreement will continue in full force and effect. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Us. If We incur reasonable legal fees or other expenses in enforcing this Agreement, you will be responsible for paying them.
You agree not to knowingly circumvent Us to solicit, negotiate with, contract with, deal with, or communicate with, any of our lead broker customers, or attempt to do any of the foregoing, whether directly or indirectly, without our advance written consent.
We have certain legal obligations to our lead broker customers. They in turn have certain legal obligations to their end-users. Recognizing this, you hereby agree for Our benefit and for the benefit of our lead broker customers and their end-users to follow this Code of Conduct:
Your marketing and lead generation activities on the Websites shall at all times conform to all applicable laws.
We will be the sole owner of each Category 2 Lead, and You will obtain the unconditional consent of the person(s) identified in the lead to deliver the lead information to us and to our lead broker customers and their end-users.
The Category 2 Leads will not be generated by or from any marketing materials or concepts which are proprietary to trademarked or copyrighted by any other person, whomsoever, unless such person has licensed or otherwise lawfully authorized You to make use of such materials as contemplated by this Agreement.
Your websites and the content contained therein will not contain any material that is obscene, libelous or defamatory, or otherwise infringes or violates any intellectual property rights or other rights of any third party.
You will not knowingly provide any information to Us, including Category 2 Leads, which were procured through fraud, identity theft or any illegal or illicit means and, more specifically, that all leads provided to Us have been procured in compliance with all federal, state and local laws and regulations and particularly, the provisions of the CAN-SPAM Act of 2003 and with the Federal Telemarketing Sales Rules, including the provision relating to the NATIONAL DO NOT CALL REGISTRY (16 C.F.R. Part 310).
You will maintain all documents and records necessary to demonstrate compliance with the CAN-SPAM Act of 2003 and the Do Not Call Registry and You will provide evidence of such upon request.
You will promptly notify Us, in writing, if You receive any complaints or notices referencing a violation of any federal, state and local laws and regulations and particularly, the provisions of the CAN-SPAM Act of 2003 and with the Federal Telemarketing Sales Rules, including the provision relating to the NATIONAL DO NOT CALL REGISTRY (16 C.F.R. Part 310).
You have commercially reasonable practices and procedures designed to prevent the unlawful generation of leads and, more specifically, You will permit us to perform spot checks or audits on You at reasonable times and on reasonable notice to insure that You comply with all federal, state and local laws and regulations and particularly, the provisions of the CAN-SPAM Act of 2003 and with the Federal Telemarketing Sales Rules, including the provision relating to the NATIONAL DO NOT CALL REGISTRY (16 C.F.R. Part 310).
You have obtained and will continue to obtain, throughout the term of this Agreement, all requisite consents from potential customers who provide any information that is incorporated into Category 2 Leads under this Agreement and, more specifically, that each such lead has been generated as the result of a specific request by such potential customer and not generated by means of "data mining" or by other means of information gathering that does not secure the specific prior consent, permission or authorization of each potential customer.
You are solely responsible for the production of Category 2 Leads and neither We nor our lead broker customers are in a position to police You for compliance with the CAN-SPAM Act of 2003 and with the Federal Telemarketing Sales Rules, including the provision relating to the NATIONAL DO NOT CALL REGISTRY (16 C.F.R. Part 310).
You will indemnify, defend, and hold harmless Us and any injured third parties from any and all claims resulting or arising from Your acts or omissions.
You do not and will not send, initiate or otherwise engage in the use of unsolicited commercial email messages or unsolicited commercial email advertisements for purposes of generating traffic or leads.
You do not knowingly purchase or resell leads that have originated from or have been generated by unsolicited commercial email messages or advertisements.
If you collect, receive, determine, or otherwise obtain the Social Security Number of any potential customer, You will clearly post explicit language to notify and receive undeniable permission from such potential customer to share his or her Social Security Number with Us and with our lead broker customers and their end-users in order to perform a credit check or other inquiry.
You will not fraudulently or improperly generate or transmit any lead, either manually or through the use of any automatic device, mechanism, robot, frame or process.