Lead Sale Terms of Service

Last Modified: 9/1/2022

33 Mile Radius LLC, Keyword Connects LLC, and Remodeling.com LLC, each doing business as EverConnect (individually and collectively referred to as “Company”) requires users of its services, including any entity executing an insertion order (“Customer”) that references these terms to accept and adhere to these terms and conditions (the, “Agreement”). This Agreement governs the purchase and use of Company’s services and is accepted by executing an insertion order that references this Agreement or by using or accessing Company’s services. Company may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Company. If Customer continues to use or receive the services following such period, the updated Agreement will be deemed accepted.

1. Insertion Order. Services will be ordered by Customer 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 Customer’s subsidiaries or affiliates may also order services under this Agreement by entering into an Insertion Order signed by such subsidiary or affiliate and Company and agreeing to be bound by the terms of this Agreement and such Insertion Order.
2. • Leads. A “Lead” is a set of data related to a human individual interested in and authorized to purchase the Customer’s products or services. Leads may be delivered via call transfer, email, text message, API or Company’s Lead platforms.
   • Services. The Direct Services, Live Services and Marketplace Services and the Platforms are collectively referred to as the “Services”.
   • Platforms. The Direct Services client portal online platform, the Live Services online platform, and the Marketplace Services online platform are collectively referred to as the “Platforms”.
3. Service Specific Terms.
   • DIRECT.
     • Direct Services. The “Direct Services” are advertising campaigns, marketing and other related services, designed to drive the delivery of Leads to the Customer in the form of appointments (each, a “Direct Lead”). The Direct Services are provided by Keyword Connects LLC. Company will create and deliver all video, rich media create, appointment setting and referral services, and other advertising materials required for any advertising campaigns (“Advertising Materials”) in accordance with the specifications and timeframes in the Insertion Order.
     • Valid Direct Leads; Disputes. Direct Leads are determined to be Valid Direct Leads in accordance with the “Lead Criteria and Credit Policy” available at https://keywordconnects.com/lead-criteria-and-credit-policy/ (each, a “Valid Direct Lead”). Disputes and requests for review (each, a “Review Request”) under the Lead Criteria and Credit Policy must be submitted through the Direct Services client portal online platform within 5 business days of receipt of the Direct Lead and include sufficient documentation and explanation as to why the Direct Lead is not a Valid Direct Lead under the Lead Criteria and Credit Policy. Customer will receive an email confirming that Customer’s Review Request was received. Company will investigate the Review Request, which may include contacting the Lead human individual. Company’s determination as to whether a Direct Lead is a Valid Direct Lead and whether a credit is due is made in Company’s sole discretion. Customer will receive an email with Company’s determination. If a credit is due, such credit will be applied during the next billing period following determination against Fees incurred by Customer. If Company provides a credit for any Direct Lead, Customer will not use such Direct Lead in any way including any sale or transfer to a third party.
     • Limited License. Subject to Customer’s compliance with this Agreement, during the term of the relevant Insertion Order, Company grants Customer, a non-exclusive, non-transferrable, non-sublicensable, license to use, perform and display any Advertising Materials, including any Company intellectual property contained therein.
     • Customer IP. During the term of this Agreement, Customer grants Company a limited, revocable, non-exclusive, non-transferrable license to use Customers’ name, logo, trademarks and branding (“Company IP”) solely for the purpose of providing the Services hereunder. Customer represents and warrants that it has all necessary right, title and license to provide the foregoing license.
   • LIVE.
     • Live Services. The “Live Services” are digital marketing services and sales of Leads in the form of calls, which are routed live directly to the Customer (“Live Leads”). Live Services are provided by 33 Mile Radius, LLC. Customers must be licensed, bonded and insured to be eligible for Live Services. Better Business Bureau affiliation is recommended. Customer agrees to receive Live Leads 24 hours a day, 365 days a year. Customer will receive access to review call recording and Leads on the Live Services online platform. Customer may pause its account through the Live Services online platform, however, Customer will not pause its account for more than 7 days in any 30 day period without prior written approval from Company.
     • “Valid Live Leads”. Live Leads will be Valid Live Leads when the caller has authority to authorize work to be done on the property and is seeking services or a free estimate for service in Customer’s identified service area. If the Live Lead is outside of Customer’s identified service area and Customer nonetheless provides services or a free estimate for services, such Live Lead will be a Valid Live Lead. Customer will receive email and text notifications of Live Leads that had 4 or more rings or received a busy signal (“Unanswered Calls”). “Abandoned Calls” are Live Leads that are abandoned during an automated phone system, including, but not limited to, interactive voice recordings and voicemails. Unanswered Calls and Abandoned Calls are Valid Live Leads. Buyer will not represent itself as any other company or refer Live Leads to another company, any such referred Live Leads are deemed Valid Live Leads.
     • Pay Per Click Ads. Customer will not click on any pay per click ads. Customer will pay an additional fee of $100 for each Customer click on a pay per click ad.
     • Payment Method. Customers using the Live Services are required to provide a credit card as the primary payment method in accordance with the terms of this Agreement. A new billing cycle starts each Monday at 12:01 am Eastern time and closes the following Monday at 12:00 am Eastern time (each, a “Billing Cycle”). Customer’s payment method will be charged Fees for Valid Live Leads for each Billing Cycle on the Thursday after the close of such Billing Cycle or when Customer has accrued a balance due to Company of $500, whichever comes first.
     • Live Lead Disputes. Customer must dispute Leads before 12:00 pm Eastern time on the Tuesday after the Billing Cycle. Company will review any Lead disputed by Customer and will make a determination in its sole discretion as to whether the disputed Lead is a Valid Live Lead. Call recordings are maintained for 90 days. If Company provides a credit to Customer for any Live Lead, Customer will not use such Live Lead data in any way including any sale or transfer to a third party.
   • MARKETPLACE.
     • Marketplace Services. The “Marketplace Services” are marketing and lead generation services, which result in Leads made available to Customer through Company’s Marketplace online platform.
     • Marketplace Leads. Leads made available through the Marketplace Services are “Marketplace Leads.” Marketplace leads may be exclusive or shared. “Exclusive Marketplace Leads” are Marketplace Leads sold to Customer with exclusive rights for 30 days. “Shared Marketplace Leads” are sold to Customer and up to 3 other buyers at the same time. Marketplace Leads that are not Rejected Leads (as defined below) are “Valid Marketplace Leads.” Customer will receive an invoice each month for the prior month’s Valid Marketplace Leads
     • Rejected Leads. Customer must reject any Marketplace Lead that is a duplicative of a Lead in Customer’s system, does not contain a complete set of required Lead data, is invalid by not meeting the criteria set forth in the Insertion Order, or is clearly bogus or fake in real time, by providing a rejection reason to Company within a reasonable time. All such rejected leads are “Rejected Leads.” Customer will not use data from Rejected Leads in any way including any sale or transfer to a third party.

4. • Accounts; Security. Access to or use of certain portions and features of the Services may require Customer to create an account (“Account”) for the Platforms. Customer states that all information provided by it is current, accurate, complete, and not misleading. Customer further states that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its account(s), including password(s). Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the accounts. A user license is required for each person utilizing Customer’s master account, or other data generated through the use of the Platforms. Any sharing of such data to reduce the number of licenses required or sharing account information in any way is strictly prohibited.
   • APIs. If Customer activates any APIs or links to enable data sharing through the Platforms, Customer thereby authorizes Company to send and receive data with any such activated third party service and represents and warrants to Company that Customer has all appropriate right and title to grant such authorization. Customer acknowledges and agrees that Company has no liability for any third party service. Company reserves the right to disable any APIs or data sharing in its sole discretion.
5. Payment and Taxes.
   • Fees. Setup fees and service fees are set forth in the applicable Insertion Order (“Fees”).
   • Credit Card Payments. If a credit card is required or provided for the use of the Services, Customer will provide and maintain current and accurate contact and payment information with Company for each Service Customer receives. Customer authorizes Company to debit the account or payment information provided to Company for all Fees as they become due. If Customer disputes a debit or charge, Customer must notify Company within seven calendar days of the date of such charge, if no such notification is received by Company, Customer will be deemed to have accepted the debit or charge and waived any further dispute or claim related to such debit or charge. In the event Customer’s payment is declined, Company may immediately suspend Customer’s account and access to the Services until updated payment information is provided and the past due balance is paid.
   • Invoices. If applicable, Company will send invoices to the contact(s) provided in an Insertion Order. Unless otherwise set forth in the applicable Insertion Order, Fees are due and payable by Customer within 10 days of the date of the invoice for such Fees.
   • Payment. Undisputed amounts that are past due will be subject to a monthly charge of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Company, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time. Unless otherwise noted in the Insertion Order, all Fees are payable in United States Dollars and non-refundable. Customer is not eligible to receive any discounts, rebates or promotional payments Company may receive from vendors, which are earned by Company during the provision of the Services.
   • Taxes. Company Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer and Customer will pay such taxes, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Intellectual Property.
   • Company IP. Company’s intellectual property, including without limitation the Services, its trademarks and copyrights and excluding any Customer IP or Customer Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
   • Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Services are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.
   • Aggregated Data. Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may capture metrics and data regarding the use of the Services by Customer and aggregate and analyze any metrics and data collected (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the collected metrics and data, solely as incorporated into the Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
7. 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 3 months, 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) Customer will immediately cease using the Services, (b) 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 (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.
   • 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 Customer’s payment obligations under this Agreement.
8. 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. The Services, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.
   • 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.
9. Representations and Warranties. Customer represents and warrants that it will comply with all applicable international, federal, state and local laws, rules, and regulations in its access to and use of the Services.
10. Disclaimers. THE SERVICES ARE PROVIDED AS-IS AND COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE THREE 3 MONTH(S) PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
12. Indemnification. Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to Customer’s use of the Services or breach of any of its representations and warranties.
13. Publicity. Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.
14. Assignment. Customer 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 Company. 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.
15. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to: [email protected]. Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Services.
16. 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.
17. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
18. 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.
19. 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.
20. 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.
21. Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
22. 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.
23. 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.
24. 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 Company. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.