THESE TERMS AND CONDITIONS APPLY TO THE ATTACHED LEAD PURCHASE AGREEMENT (THE “AGREEMENT”). BY AGREEING TO THE TERMS SET FORTH HEREIN YOU ATTEST THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER. ACCORDINGLY, THE COMPANY AND CUSTOMER JOINTLY AGREE TO THE FOLLOWING TERMS AND CONDITIONS:
1. SERVICES. Per the terms of this Agreement, the Company shall use commercially reasonable efforts to supply Customer with Leads. Company shall submit via email, XML feed or browser post (as selected by Customer pursuant to the terms of this Agreement). Company reserves the right to provide any disclaimer language deemed necessary or advisable by Company to each Lead.
*The Company shall use commercially reasonable efforts to include the following information for each Lead: name, address, contact information, and any other information provided by the Company in its sole discretion based on the project type, as of the time such information is supplied and submitted to the Company and/or its partners by the potential consumer.
*Customer may return a Lead that Customer believes is not a Lead in accordance with the Company’s then applicable Lead Return Policy which may be revised from time to time in the sole discretion of the Company.
*The Company shall supply Leads to Customer, at the Company’s sole discretion, at which time Company will charge the Fees to Customer’s credit card or checking account.
*The Company reserves the right to withhold any Leads or its performance under this Agreement if the Company has not been paid in accordance with the terms set forth herein.
4. CUSTOMER REPRESENTATIONS & COVENANTS; INDEMNIFICATION.
*Customer represents and warrants that it has full power, right and authority to enter into and carry out its obligations and grant the rights and licenses under this Agreement and that this Agreement constitutes a valid and binding obligation of the Customer, enforceable against Customer in accordance with its terms.
*Customer shall ensure that all Leads (and all corresponding underlying Lead information) provided hereunder are used, contacted (via direct mail, email or telephone), maintained and accessed by Customer and/or Customer’s affiliates in compliance with applicable law, including without limitation, the Telemarketing Sales Rule (as amended), the Telephone Consumer Protection Act of 1991, and the CAN-SPAM Act of 2003.
*Customer (a) represents and warrants that it has all applicable licenses, applicable insurance (including, without limitation, Workers Compensation and Commercial General Liability Insurance), certifications and accreditation, required to perform the services intended for the Leads and (b) shall bear the obligation to make all filings and obtain and maintain any and all necessary and/or applicable governmental approvals or licenses relating to Customer’s business and for the use of the Leads in all such jurisdictions.
*Customer represents and warrants that it will perform the services intended for Leads in compliance with all applicable laws, and in a professional and responsible manner consistent with the standards of the industry.
*Customer represents and warrants that it will conduct adequate background checks on all of its employees to ensure that such employees are capable of performing services in a competent, safe and legally compliant manner.
*Customer hereby agrees to defend and indemnify the Company against, and hold the Company harmless from, any loss, claim, cost, liability, suit, judgment or expense (collectively, “Claims”), including court costs and reasonable fees of attorneys and other professionals, arising out of or in connection with any third party Claim arising from (a) a breach of this Agreement by Customer; (b) any work (including, without limitation, marketing, installation and maintenance work) performed by Customer, its agents, employees, subsidiaries and/or affiliates for any Lead provided by the Company; or (c) any act or omission of Customer.
*Customer hereby agrees to defend and indemnify any third party provider of a Lead to Company (a “Third Party Indemnitee”) against, and hold such Third Party Indemnitee harmless from, any Claims including court costs and reasonable fees of attorneys and other professionals, arising out of or in connection with any third party Claim arising from (a) a breach of this Agreement by Customer; (b) any work (including, without limitation, marketing, installation and maintenance work) performed by Customer, its agents, employees, subsidiaries and/or affiliates for any Lead provided by the Company; or (c) any act or omission of Customer. Customer acknowledges and agrees that any such Third Party Indemnitee is intended to be a third party beneficiary of this Agreement, and that any such Third Party Indemnitee may enforce this indemnification obligation directly against the Customer.
*Customer will carry, during the term of this Agreement and thereafter, insurance policies covering errors and omissions of Customer in providing the services intended for Leads. Customer will provide Company with copies of such policy(ies) upon request and will name Company as an additional insured on such policy(ies).
*Customer acknowledges that Company is merely providing Leads to potential customers, that Company makes no representations as to the suitability of any potential customer to the Customer, and that Company makes no representations as to the suitability of Customer’s services to any potential customer. Customer will conduct its own investigation as to whether a potential customer referred by Company is suitable for
5. DISCLAIMER.EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE COMPANY PROVIDES NO ADDITIONAL WARRANTIES REGARDING THE LEADS AND THE COMPANY’S SERVICES OR THAT THE LEADS AND THE COMPANY’S SERVICES WILL RESULT IN ADDITIONAL BUSINESS OR REVENUE TO CUSTOMER OR CUSTOMER’S AFFILIATES. THE PROVISIONS OF THIS SECTION 5 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
6. INTELLECTUAL PROPERTY. The Company hereby grants to Customer for the term of this Agreement a non-exclusive, non-transferable, limited license to use the Leads for purposes of contacting and soliciting such potential consumers about Customer’s products/services only. Customer shall have no rights to grant sublicenses or transfer the Leads without the prior express written approval of the Company. For the avoidance of doubt, the Leads are for the benefit of the Customer and Customer shall not transfer any Lead to a third party without the prior express written approval of the Company. Such license shall terminate immediately upon termination of this Agreement for any reason.
7. CREDIT CARD/CHECKING ACCOUNT AUTHORIZATION. Customer represents that any credit card or checking account information provided to the Company is complete and accurate and that Customer is authorized to use such credit card or checking account. Accordingly, Customer authorizes the Company to bill the credit card or checking account provided by Customer for Fees. Customer agrees not to initiate a chargeback with respect to any Fees with the credit card issuer or bank unless Customer has exhausted all attempts to resolve any disputes directly with the Company. You further understand that initiating a chargeback does not extinguish your obligation to pay. Customer shall indemnify and hold the Company harmless against any liability pursuant to this credit card or checking account authorization. If Customer’s credit card or checking account is denied for any reason, Customer shall immediately provide substitute credit card or checking account information to Company.
8. TERMINATION. This Agreement may be terminated upon three (3) days written notice to the other party; however, any termination shall not relieve the parties of any obligation accruing prior to the effective termination date. Except as otherwise provided herein, termination of this Agreement shall terminate all further rights and obligations of the Company and Customer hereunder provided that if such termination is based on a breach by a party hereto, the other party shall be entitled to pursue any and all rights it has to redress such breach in law or equity. Except as set forth herein, the provisions set forth in Sections 4, 5, 6, 9 and 10 herein shall survive the termination and expiration of this Agreement.
9. NON-CIRCUMVENT. Company may obtain Leads from its third party partners (“Partners”). Given that, during the course of this Agreement, Customer might be introduced by Company to such Partners or determine on its own which Partners Company has relationships with, Customer agrees that, during the term of this Agreement and for two (2) years following the termination of this Agreement for any reason, neither Customer nor its affiliates, subsidiaries, employees or agents (a “Related Party”) will directly or indirectly contact, solicit, or enter into a business relationship with any Partner (including, without limitation, any affiliate or subsidiary thereof), or solicit or induce any Partner to terminate its relationship with Company.
Section 9 of this agreement shall impose no obligations with respect to Partners which:
1. Customer had a relationship with prior to relationship with Company
2. Consent is given to Customer in writing by Company
Customer understands and agrees that the remedies at law for breach of the foregoing non-circumvention covenant (the “Covenant”) may be inadequate and that Company may be entitled to injunctive or such other equitable relief as a court may deem appropriate for any breach of this Covenant. If this Covenant is at any time adjudged invalid to any extent by a court of competent jurisdiction, this Covenant shall be deemed modified only to the extent necessary to render it enforceable. Customer agrees that a violation on its part or a Related Party of this Covenant will cause such damages to Company as will be irreparable and the amount of which will be impossible to ascertain. For that reason, Customer agrees that, in the event that a court of competent jurisdiction finds that Customer or a Related Party has violated this Covenant, Company shall be entitled to an injunction from a court of competent jurisdiction restraining any further violation of this Covenant by Customer or a Related Party, and Customer shall pay over all income or benefits it receives from its business relationship with a Partner in violation of this Covenant. Pending the hearing and decision on the application for such injunction, Company shall be entitled to seek a temporary restraining order without prejudice to any other remedies available to it, it being understood that it takes only a few days to destroy the goodwill and patronage of Company by the prohibited activities of Customer. The right of injunction as provided for by this paragraph shall be cumulative and in addition to any other remedies available to Company. In the event that Customer shall breach this Covenant, or in the event that such breach appears to be an imminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result thereof, and may, in addition to any and all other forms of relief, recover from Customer all reasonable costs and attorneys’ fees encountered by it in seeking any such remedy.
*Independent Contractor. The relationship between the Company and Customer established by this Agreement is that of independent contractor and each party will conduct its respective business at its own initiative, responsibility and expense. Furthermore, the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and that this Agreement shall be deemed to have been drafted by both parties, and thus the rule of construction against the drafter shall not apply.
*Logo Usage. Customer agrees that the Company may, in its sole discretion, include Customer’s name, including any trade name, then-current trademark or service mark, and logo on the Company’s marketing materials.
*Forum and Choice of Law. This Agreement, all claims or causes of action (whether in contract or tort) that may be based upon or arise out of or relate to this Agreement or relate to the negotiation, execution or performance of the Agreement (including any representation or warranty made in connection with this Agreement), and any additional or subsequent Lead purchases between the Company and Customer hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of Michigan. The parties hereunder consent to the exclusive jurisdiction of the Courts in Michigan and that this Agreement shall be deemed to have been entered into and performed in Michigan.
*Limitation of Liability. COMPANY’S AGGREGATE LIABILITY TO CUSTOMER, IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED AN AGGREGATE LIMIT OF THE TOTAL SUM OF LEAD FEES ACTUALLY PAID TO THE COMPANY BY CUSTOMER PURSUANT TO THE TERMS OF THIS AGREEMENT IN THE THREE (3) MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY PURSUANT TO OR BASED ON THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE EARLIER OF (X) THE DATE OF LAST PROVISIONING OF LEADS OR (Y) THE TERMINATION OF THIS AGREEMENT.
*Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all previous agreements and proposals, oral or written, and all negotiations, representations, warranties, conversations, or discussions between the parties related to the Company’s Lead services. Customer acknowledges it has not relied on any representations or statements by the Company not included in this written Agreement. The parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Company’s services exclusively in contract pursuant to the express terms and provisions of this Agreement and the parties hereto expressly disclaim that they are entitled to any remedies not expressly set forth in this Agreement.
*Amendment. This Agreement may be amended and revised in a writing signed by both parties (which may include, without limitation, email). [From time to time, the Company may update or revise this Agreement. Your continued purchase of Leads (via either the Company’s online client portal or a Confirmed Communication) constitutes acceptance of these changes.
*Waiver. The failure of any party hereunder to insist upon strict performance of any terms or provisions of this Agreement shall not be construed as a waiver or relinquishment for the future of any such terms or provisions. Rather such terms and provisions shall continue and remain in full force and effect. No waiver shall be deemed to have been made unless the waiver is made in writing and signed by the party making the waiver.
*Intent to Be Bound. [CUSTOMER ACKNOWLEDGES THAT CUSTOMER’S ELECTRONIC SUBMISSION CONSTITUTES CUSTOMER’S AGREEMENT AND INTENT TO BE BOUND BY THE TERMS HEREIN.]
*Severability. If any term or provision of this Agreement is held to be unenforceable or invalid to any extent, the remainder of this Agreement shall not be affected and each other term or provision of this Agreement shall be valid to the fullest extent permitted by law.
*Attorneys’ Fees. In the event that the Company commences a legal action or incurs other costs to enforce its rights under this Agreement (including, without limitation, collection company fees), Company shall be entitled to recover its reasonable attorneys’ fees and/or costs from Customer.
*Geographic Regions (“Geos”). Refers to the municipality and greater metro area thereof.