Lead Purchase Terms

Last Modified: 9/1/2022

These terms and conditions (“Agreement”) are made and entered into by and between 33 Mile Radius, LLC, Keyword Connects, LLC and Remodeling.com, LLC doing business as EverConnect (collectively referred to as “Purchaser”) and the entity executing an insertion order (“Seller”). This Agreement governs services between the parties and is accepted by executing an insertion order that references this Agreement.

 

1. Insertion Orders. Services will be ordered by Purchaser pursuant to executed insertion orders (each, an “Insertion Order”). Each Insertion Order will include the specific services being ordered and the associated fees and any additional terms as applicable. Upon execution by both parties each Insertion Order will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Purchaser’s subsidiaries or affiliates may also order services under this Agreement by entering into an Insertion Order signed by such subsidiary or affiliate and Seller and agreeing to be bound by the terms of this Agreement and such Insertion Order.
2. • Leads. A “Lead” is a unique set of data related to a human individual interested in and authorized to purchase the Purchaser’s products or services, collected by Seller and includes at a minimum, the prospective customer’s actual first and last name, mailing address, phone number and email address.
   • Rejections/Returns. Purchaser may reject any Lead that: a) is a duplicative of a Lead in Purchaser’s system; b) does not contain a complete set of required Lead data; c) is invalid by not meeting the criteria set forth in the Insertion Order; d) was obtained using “spyware”; e) contains forged or fabricated data, or data from an identified fraudulent incident; or f) is clearly bogus or fake, by providing a rejection reason to Seller within a reasonable time. All such rejected leads are “Rejected Leads.” Purchaser will not use data from Rejected Leads in any way including any sale or transfer to a third party.
3. Payment and Taxes.
   • Fees. Fees are as set forth in the applicable Insertion Order (“Fees”).
   • Invoices and Taxes. Seller will invoice Purchaser on a monthly basis. Seller will include all applicable taxes on the invoice, unless Purchaser provides Seller will a valid tax exemption certificate authorized by the appropriate taxing authority.
   • Payment. Fees are due and payable within 30 days of the invoice date. All Fees are payable in United States Dollars.
4. Term and Termination.
   • Term.
     • Agreement. This Agreement will be effective as of the stated date in an initial Insertion Order (“Effective Date”) and remain in effect until (a) all executed Insertion Orders have expired or been terminated or (b) terminated by either party as permitted by this Agreement.
     • Insertion Orders. Unless otherwise stated in an Insertion Order the initial term for each Insertion Order will be one year, thereafter, the Insertion Order will automatically renew for successive periods equal to the initial term, unless cancelled by either party in accordance with this Agreement.
   • Termination. Either party may terminate this Agreement for any reason or no reason by providing 5 days’ written notice. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
   • Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (b) Termination shall not relieve Purchaser of its obligation to pay any fees that have accrued as of the effective date of such termination.
   • Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and payment obligations under this Agreement.
5. Exclusivity. Leads sold as “Exclusive” (as indicated in the IO) must not be used by Seller or otherwise sold to, shared with or distributed to, other purchasers, lead aggregators, vendors, wholesale operations, retailer buyers or other third parties.

 

6. Confidential Information.
   • Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement.
   • Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
   • Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
7. Representations and Warranties. Seller represents and warrants that all leads have been obtained, and are being sold to Purchaser, in compliance with international, federal, state and local laws and regulations, and all appropriate consents have been obtained for Purchaser to call, text and email, including through use of automated dialing technology, for each lead provided by Seller.

 

8. Indemnification. Seller agrees to defend and indemnify Purchaser and its affiliates from and against any legal action, demand, suit, or proceeding brought against Purchaser or its affiliates by a third party arising out of or related to a breach of the foregoing representations, and such obligations shall not be subject to the any limitations on liability provided herein.

Purchaser agrees to defend and indemnify Seller from and against any legal action, demand, suit, or proceeding brought against Seller by a third party arising out of or related to the Purchaser’s incompliance with applicable law.

9. Assignment. Seller may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Purchaser. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
10. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Seller wishes to provide notice to Purchaser, Seller will send notice via email to: [email protected]. Purchaser will send notices to one or more contact(s) on file for Seller. Notices from Purchaser, other than for a breach of this Agreement may be provided within the Services.
11. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
12. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
13. No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
14. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
15. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
16. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Delaware, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Colorado THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
17. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
18. Counterparts, Entire Agreement and Order of Precedence. An Insertion Order may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Insertion Order(s) and supplemental policies, states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Insertion Order; (b) the terms and conditions of this Agreement; and (c) the terms and conditions of any supplemental policies provided by Purchaser. Any preprinted terms on any purchase order are hereby expressly rejected by Purchaser and will be of no force or effect.