This
Lead Generation Agreement is effective as of ___________________.
Acceptance
of this Agreement Your access to, use of, or
participation in this Program (as defined below) is subject to this Lead
Generation Agreement (“Agreement”). This Agreement constitutes a
legally binding contract between the company you represent and
__________________ (“Company”). All references to “you” or “your,” as
applicable, mean the contractor who accesses, uses, and/or participates
in the Program in any manner. If you use the Program on behalf of a
company, you represent and warrant that you have the authority to bind
that company, your acceptance of the Agreement will be deemed an
acceptance by that company, and “you” or “your” shall herein refer to
that company. Company reserves the right to immediately terminate
this Agreement or your participation in the Program for any reason or no
reason at any time.
Modifications to this Agreement Company
reserves the right, in its sole discretion and at any time, to change,
modify, or otherwise amend this Agreement and any other documents
incorporated herein by reference. Company will post the amended
Agreement on the Platform (as defined below). It is your responsibility
to review the Agreement for any changes. Your continued use of the
Program will signify your assent to, and acceptance of, the amended
Agreement. If you do not agree to abide by this or any amended
Agreement, you are prohibited from participating in the Program.
Description of the Program The
Lead Generation Program (the “Program”) is intended to provide a quick
and easy way for consumers visiting Company’s website or platforms
(“Customers”) to find a contractor (“Contractor”) who is interested in
accepting an emergency repair or replacement project (“Project”).
Mechanism of the Program a. A customer will submit his/her location and services issue(s) (the “Lead”)through the Company's website or platform (the “Platform”). b.
The Lead will be shared via the Platform with a group of eligible
Contractors that perform the type of services described in the Lead in
the area in which the Customer is located. c. The Contractor who
responds first to the Lead and commits to arrive at the Customer’s
location within 90 minutes will win the bid. d. If the Customer
agrees to hire you upon your arrival at his/her location, it will be
your responsibility to enter into a service contract with the Customer
(“Service Contract”) and collect your service fee and trip charge from
the Customer directly.
Payment a.
If you do not arrive within 90 minutes of the bidding time, we will
immediately charge your credit card on file for using the Platform,
instead of billing the Customer. b. Fees are exclusive of any taxes,
levies, duties, or similar governmental assessments of any nature
(“Taxes”), including, for example, sales, use or withholding taxes,
assessable by any jurisdiction. c. If you fail to pay any Fees due in
accordance with this Section 5, in addition to our other remedies, we
may (a) suspend access to and use of the Platform by you pending payment
of such overdue amounts, or (b) immediately terminate the Agreement for
breach. d. If you believe that we have invoiced you incorrectly,
you must submit any invoice dispute by the _______ of each month in
order to receive an adjustment or credit, otherwise, your right to
dispute the amounts invoiced shall be waived. In the event of a disputed
invoice, only that portion so disputed in good faith may be withheld
from payment and you must timely pay the undisputed portion. We may
charge you interest at the rate of 1.5% per month (or the highest rate
permitted by law, if less) on all late payments. You are responsible for
any and all costs of collection incurred by Company in collecting such
late or past-due payments, including reasonable attorney’s fees and
litigation costs.
Representation and Warranty You represent, warrant, covenant and agree that, at the time you respond to a Lead: a.
You possess all applicable state and local licensing, registration,
permits, insurance, bonding, or other trade requirements to provide
service for the Project described in the Lead; b. You have not received any significant complaints from Customers; c.
You are willing and able to complete the work described in the Lead to
the Customer’s satisfaction at the Customer’s location; d. You will
abide by all applicable federal, state, or local laws, rules, and
regulations, including but not limited to the Telephone Consumer
Protection Act; e. You are in good standing with Company, meaning
that you have not been excluded for any reason from category or keyword
searches, and are not delinquent in any of your obligations (financial
or otherwise) relating to this Agreement or any other agreement with
Company; f. You have full power, authority, and legal capacity to execute and deliver this Agreement; g.
None of your trademarks, service marks, logo or other marks used in the
advertisements infringe or violate any other person’s or entity’s
intellectual property rights.
Provision of Services You
agree to, at all times, perform the services obtained through the
Program in a good and workmanlike manner, consistent with the best
practices and highest level of service available in the relevant
industry, and shall be solely and independently responsible for such
performance. You shall commence the performance of the services for a
Customer within the time frame agreed to between you and the Customer.
Notwithstanding the foregoing, all services performed for a Customer
shall be performed pursuant to Service Contract. All of the services
performed for Customers in connection with the Program shall be billed
to the applicable Customer in accordance with Service Contract.
Company Trademarks You
shall not use, directly or indirectly, any of Company’s trademarks,
trade names, images, service marks, logos or other intellectual property
for any purpose without the express written consent of Company. No
license or other rights in or to any Company intellectual property or
logo are granted to Contractor under or implied by this Agreement.
Indemnification by Contractor You
hereby agree to indemnify, defend and hold harmless Company and its
Affiliates and their respective directors, managers, officers,
stockholders, employees, agents, and insurers (“Company Indemnitees”)
from and against any and all claims, demands, actions, losses, expenses,
damages, liabilities, costs (including, without limitation, interest,
penalties and attorneys’ fees) and/or judgments incurred or suffered by
any of the Company Indemnitees that result from or arise out of,
directly or indirectly, (i) your breach of any terms of this Agreement;
(ii) your sale of any products to Customers or provision of or failure
to perform services for any Customers or any other persons; (iii) your
failure or refusal to honor any quote made to a Customer; (iv) your
breach of any terms of Service Contract with Customer; (v) any
negligence or willful misconduct by you; (vi) any allegation or finding
that Company is acting as a general contractor or other professional
contractor (e.g., construction, plumbing, electrical, etc.); or (vii)
any non-compliance or alleged non-compliance by you with any such laws. “Affiliates”
means any entity that directly or indirectly controls, is controlled
by, or is under common control with the subject entity. “Control,” for
purposes of this definition, means direct or indirect ownership or
control of more than 50% of the voting interests of the subject entity.
Limitation of Liability TO
THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO YOU
FOR LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, INDIRECT, PUNITIVE,
OR CONSEQUENTIAL DAMAGES OR SPECIAL LOSSES, WHETHER BASED UPON A CLAIM
FOR BREACH OF WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE
CLAIM RELATING TO THIS AGREEMENT, THE RELEVANT GOODS OR SERVICES OR
PERFORMANCE HEREUNDER. COMPANY'S ENTIRE, CUMULATIVE LIABILITY FOR
DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR SERVICES
SHALL BE LIMITED TO FEES PAID BY THE CONTRACTOR UNDER THIS AGREEMENT FOR
THE LEAD GIVING RISE TO THE LIABILITY IN THE THREE MONTHS PRECEDING THE
FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
Relationship of Parties You
are a nonexclusive independent contractor to Company. Your employees
and/or agents are not employees of Company and are not eligible to
participate in any benefits or privileges given or extended by Company,
or by operation of law, to its employees. You have no authority to
assume or to create any obligation or responsibility, express or
implied, on behalf of or in the name of Company. Subject to the terms
of this Agreement, you shall be solely responsible for determining the
manner and method by which you shall perform the Services, and the
setting and ultimate collection of its compensation that you charge a
Customer for the services, subject to the terms and conditions of your
Service Contract with the Customer pursuant to which such services are
performed. COMPANY IS NOT A GENERAL CONTRACTOR, PROVIDER OF SERVICES, OR
MERCHANT OF RECORD AND IS ACTING SOLELY IN ITS CAPACITY AS A SYSTEM
ADMINISTRATOR FOR YOU AND THE CUSTOMER FOR THE PURPOSE OF ENABLING
SUPERIOR SERVICE AND FOR MARKETING AND ADVERTISING THE SERVICES ON YOUR
BEHALF. By entering into this Agreement, you agree that you are
solely responsible for compliance with all applicable laws, rules,
regulations, ordinances and orders (collectively, “Laws”) of federal,
state and local governmental entities relating to the performance of the
services, including, without limitation, any and all Laws relating to
professional licensure and permitting, construction permitting, and
bonding.
Confidentiality You
shall hold any information disclosed to, or uncovered, overheard or
otherwise obtained, by You before or after the date of this Agreement
(the “Confidential Information”), in absolute and strict confidence.
Confidential Information includes but not limited to: (i) Lead; (ii)
work flow processes, source code, programming information; (iii) client
lists and other client data, supplier lists, pricing information and fee
schedules; (iv) employment, management and consulting agreements and
other organizational information; (v) trade secrets and other
proprietary business and management methods; (vi) competitive analysis
and strategies; (vii) any other technical, marketing, operational,
economic, business, management, or financial knowledge, information or
data of any nature whatsoever relating to the business of Insal, (x) any
extracts therefrom, and (xi) the existence and terms of this Agreement.
Confidential Information shall also include any information that is
provided to Client by third parties and is subject to obligations of
confidentiality. Confidential Information includes not only written
information but also information transferred orally, visually,
electronically or by other means. The term Confidential Information
shall not include any information that: (i) has become part of the
public domain through no breach of this Agreement or no fault of yours;
or (ii) was lawfully in your possession, without an obligation of
confidentiality, prior to receipt hereunder, as evidenced by your
business records; (iii) is obtained by you from a third person who is
not in violation of any contractual, legal, or fiduciary obligation to
disclosing party by disclosing the Confidential Information; or (iv) is
independently developed by you without the use of Confidential
Information as evidenced by your business records. You agree that
such Confidential Information will be used for no purpose other than for
performing the Services under this Agreement. You agree that it shall
implement the same commercial measures that you use to protect your own
highly sensitive confidential information and shall not disclose it to
anyone except to a limited group of its employees, officers, directors
and outside consultants who have a need to know such information for the
sole purpose of performing the Services hereunder (“Representatives”),
provided that prior to such disclosure, each person to whom such
Confidential Information is disclosed must be advised of its
confidential nature and of the terms of this Agreement and must agree in
writing to abide by such terms. You shall be responsible for its
Representative’s breach of this Agreement. Upon termination of this
Agreement or upon written request from Company to you at any time, (i)
you shall promptly return to Company all of Company’s Confidential
Information which is in tangible form, including any copies which you
may have made, and you will destroy or delete all abstracts, summaries
thereof of references thereto in its documents, and certify to Company
that you have done so, and (ii) neither you nor your Representatives
will use any of the Confidential Information with respect to, or in
furtherance of, any of their respective businesses, or in the business
of anyone else, whether or not in competition with Company, or for any
other purpose whatsoever. The confidentiality obligations set forth in
this Agreement shall remain in full force and effect despite the return
or destruction of such Confidential Information. In the event that
you become legally compelled to disclose any of Company’s Confidential
Information, you will provide Company with prompt notice so that Company
may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that
Company is unable to obtain such protective order or other appropriate
remedies, you (a) will furnish only that portion of Company’s
Confidential Information which it is advised by a written opinion of
your counsel is legally required, and (b) will exercise its best efforts
to obtain a protective order or other reliable assurance that
confidential treatment will be accorded the Confidential Information so
disclosed.
Breach of Agreement and Liquidated Damages a.
You understand and agree that, because damages are often difficult to
calculate if it becomes necessary for Company to pursue legal action to
enforce the terms and conditions of this Agreement, you will be liable
to pay us the following amounts as liquidated damages, which you accept
as reasonable estimates of Company’s damages for the specified breaches
of this Agreement. b. If you display, copy, duplicate, reproduce,
sell, re-sell or exploit for any purpose any of the content we posted in
the Platform, you agree to pay One Thousand Dollars ($1,000) for each
item of content displayed, copied, duplicated, reproduced, sold, resold
or exploited in violation of this Agreement. c. If you use computer
programming routines that are intended to aggregate records or content
from the Platform or otherwise damage, interfere with, disrupt, impair,
disable or otherwise overburden our Platform, you agree to pay One
Thousand Dollars ($1,000) for each review or record that is aggregated,
disrupted, damaged or otherwise affected by you. d. Except as set
forth in the foregoing subsections (a) through (c), inclusive, you agree
to pay the actual damages suffered by Company, including, but not
limited to attorneys’ fees and court costs, to the extent such actual
damages can be reasonably calculated. Notwithstanding any other
provision of this Agreement, we reserve the right to seek the remedy of
specific performance of any term contained herein, or a preliminary or
permanent injunction against the breach of any such term or in aid of
the exercise of any power granted in this Agreement, or any combination
thereof.
Notice You
agree that Company may communicate any notices to you under this
Agreement, through electronic mail, regular mail or posting the notices
on the Platform. All notices to Company shall be provided by either
sending a letter, first class certified mail, to _______________,
__________________ Attn: _______________. Such notices will be deemed
delivered upon the earlier of the verification of delivery or two (2)
business days after being sent.
Governing Law, Jurisdiction and Statute of Limitations for Claims The
Program, the Platform, this Agreement, and your relationship with
Company shall be governed by the laws of the State of Texas, without
regard to its conflicts of laws provisions. You agree and consent to the
exclusive jurisdiction of the state or federal courts located in Dallas
County, Texas and waive any defense of lack of personal jurisdiction or
improper venue or forum non conveniens to a claim brought in such
court, except that Company may elect, in its sole discretion, to
litigate the action in the county or state where any breach by you
occurred or where you can be found. You agree that regardless of any
statute or law to the contrary, any claim or cause of action you bring
arising out or related to your use of the Program, the Platform, this
Agreement, or your relationship with Company shall be filed within one
(1) year after such claim or cause of action arose or will forever be
barred.
No Assignment You
may not assign or otherwise transfer this Agreement or any of its
rights and/or obligations relating to this Agreement without the prior
written consent of Company.
Waiver No
course of dealing, course of performance, or failure of either party to
strictly enforce any provision in the body of this Agreement is to be
construed as a waiver thereof.
Interpretation; Construction If
any provision of this Agreement is held illegal, invalid or
unenforceable under the Law, such provision will be fully severable and
this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision were not a part of this Agreement.
All headings in this Agreement are for convenience and for reference
only, are not part of this Agreement, and no construction or inference
will be derived from the headings. The word “including” does not exclude
items not listed. Unless the context otherwise requires, singular
includes the plural and plural the singular, and masculine, feminine and
neuter genders are interchangeable. Unless expressly provided
otherwise, the word “day” refers to a calendar day.
Entire Agreement This
Agreement governs your use of the Program and constitutes the entire
agreement between you and Company with respect to the Program. It
supersedes any prior or contemporaneous negotiations, discussions or
agreements, whether written or oral, between you and Company regarding
the subject matter contained in this Agreement. Additional terms and
conditions may exist between you and third parties, including but not
limited to, any Service Contract you enter into with a Customer. You
represent and warrant that those third-party agreements (including any
such Service Contract) do not interfere with your obligations and duties
to Company under this Agreement.
Provisions Remaining in Effect Termination
of this Agreement for any reason will not affect any continuing
obligation or liability of the Agreement which would otherwise survive
termination of this Agreement, including without limitation, your
obligations pursuant to the Warranties, Indemnification, and
Confidentiality sections of this Agreement.
Binding Effect This
Agreement and the rights and obligations created hereunder shall be
binding upon and inure solely to the benefit of you and Company and our
respective successors and permitted assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
Force Majeure Except
for the payment obligations, neither party shall be liable for any
costs or damages resulting from its inability to perform any of its
obligations under this Agreement due to acts of God, the elements,
strikes, actions or decrees of governmental bodies or any like causes
beyond the reasonable control of the affected party, and could not have
been prevented or avoided by the exercise of all due diligence. (“Force
Majeure Event”). A Force Majeure Event shall not constitute a breach of
this Agreement.
Right to Injunction; Right to Costs and Attorneys Fees. You
recognize and agree that the covenants regarding Confidential
Information are reasonably necessary to protect Company’s legitimate
interests. You acknowledge that violation of such covenants would cause
irreparable harm to Company not adequately compensated by monetary
damages. You agree that Company may, in addition to other remedies,
enjoin your violation of the covenants contained in this Agreement. You
agree to pay Company the costs and reasonable attorneys’ fees and other
expenses of litigation incurred by Company in enforcing any or all of
the provisions of this Agreement. IF YOU DO NOT AGREE TO ALL OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE PLATFORM OR
PARTICIPATE IN THE PROGRAM. YOU ACKNOWLEDGE THAT YOU HAVE READ,
UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.