LEAD PURCHASE AGREEMENT

 

THIS LEAD PURCHASE AGREEMENT (“Agreement”) is entered into as of the earlier of the date of execution, online acceptance of these terms or receipt of a prepayment (“Effective Date”) by and between CareInHomes having its principal place of business at Northpoint Centre 1, 6836 Austin Centre Blvd. Ste. 260 Austin TX 78731 (“CareInHomes”) and the party countersigning the Agreement, accepting the terms online or otherwise prepaying or paying for Leads from CareInHomes (“Lead Purchaser” or “Advertiser”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged.  CareInHomes and Lead Purchaser agree to be legally bound as follows:

 

1. Agreement

 

1.1 This Agreement along with the mutually agreed upon insertion order, attached hereto and made a part hereof (“Insertion Order”) and/or any services requested by Lead Purchaser via CareInHomes’s online account portal (the “Portal”), shall define CareInHomes’s and Lead Purchaser’s obligations with respect to CareInHomes’s delivery of leads via an mechanism including, but not limited to, email, fax, SMS, through the Portal, posting or any other method (“Leads”). In the event of a conflict between this Agreement, an Insertion Order, and the Portal, the terms and conditions of the Insertion Order, the Portal and then the Agreement shall govern in that order.  Modifications to the Insertion Order or other Lead purchases may be made by emails between the parties.

 

1.2 In the course of fulfilling the Insertion Order and/or Portal obligations, CareInHomes may use affiliates, exchanges, networks, publishers, internet advertisers, tracking system vendors, developers, creative agencies and individuals, call centers, consultants and agents (collectively “CareInHomes Partners”).

 

1.3 Lead Purchaser understands that CareInHomes in due diligence cannot monitor all host sites for appropriate content and makes no representations with respect to content on any website.

 

2. Creative.  In the event Lead Purchaser provides any content, creative or other materials to CareInHomes hereunder, the terms and conditions of this Section shall apply.

 

2.1 Lead Purchaser shall provide all creative, substantive and other marketing materials in connection with marketing a Campaign, including but not limited to, banners, language/text for promotional email text, links, key words and any other creative content as needed, including, but not limited to, the use of alternative text-based creative (collectively “Creative”).  To the extent CareInHomes provides assistance, collaterals, mini-sites (including mini-sites using CareInHomes forms), or other materials in the development of a Campaign, such assistance, collaterals or materials shall also be Creative.  Lead Purchaser is solely responsible for the content of all Creative and Campaigns including claims made by such advertisement’s subject lines, from lines and all other material that is made available to the public including all compliance issues.  CareInHomes shall have no liability for any claims arising out of the Creative that has been approved by Lead Purchaser including, but not limited to Creative derived from CareInHomes.  For purposes of approval, email approval shall be sufficient and approval shall not be required for changes to the HTML for tracking and hosting purposes, resizing the creative for deliverability performance, and chances for compliance purposes such as address and unsubscribe linking.

 

2.2 Lead Purchaser agrees to confirm the correct function and legal compliance of all Creative and approve all Creative within twenty-four (24) hours of CareInHomes’s request for approval.  If no confirmation is received within this timeframe, the Creative shall be deemed functioning properly, in full compliance with all laws and regulations, accurately representing the products and services advertised, and approved.  All problems related to Creative should be immediately brought to the attention of CareInHomes.  CareInHomes is not liable for errors in position and/or placement of the Creative, typographic errors of any kind or other liabilities arising out of the Creative.

 

2.3 Lead Purchaser agrees to allow CareInHomes to make changes or alterations to the Creative as necessary to support the Campaigns.  CareInHomes may, at its option, modify the flight date of a Campaign if the Creative or linking URL’s are not delivered on time or there are delays due to third party ad-serving, inventory fluctuation or other issues beyond CareInHomes’s control.

 

2.4 Lead Purchaser hereby grants to CareInHomes and CareInHomes Partners a nonexclusive, worldwide, royalty-free, license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) in connection with its obligations hereunder.

 

2.5 Lead Purchaser understands that CareInHomes in due diligence cannot monitor all host sites for appropriate content and makes no representations with respect to content on any website where Campaigns are placed.  If Lead Purchaser reasonably determines that the placement of any Campaign by CareInHomes harms the goodwill or reputation of Lead Purchaser or disparages or brings Lead Purchaser into disrepute, then CareInHomes shall promptly notify all offending publishers and affiliates to cease mailing and removal of the Campaign shall be completed within ten (10) business days following Lead Purchaser's written notice thereof to CareInHomes; provided, however, that if CareInHomes reasonably believes that removal of a Campaign from a website will have a material impact on CareInHomes’s ability to perform in accordance with the applicable Insertion Order and/or the Portal, CareInHomes may have an extension of the flight dates or other accommodation.

 

2.6 CareInHomes does not prescreen or attempt to censor or review any advertisement or Creative.  CareInHomes expressly reserves the right to: (i) refuse any advertising request, cancel any Campaign, or change any Campaign that does not completely conform to every material detail, instruction, method, and guideline set forth in an Insertion Order and/or the Portal; (ii) refuse any Creative that does not arrive forty-eight (48) hours prior to the start date; (iii) refuse or cancel the use of any Campaign that it deems inappropriate; or (iv) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason including those that it believes are an invasion of privacy, are degrading, libelous, unlawful, profane, obscene, pornographic, tend to ridicule or embarrass, are in bad taste, or which in its discretion are an infringement on a trademark, trade name, copyright, or other proprietary right belonging to others.  All Campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, Creative performance, and market pricing limitations.

 

2.7 For each Campaign that will be distributed via email the Lead Purchaser shall provide a postal address and a non-misleading and accurate “Subject Line” and “From Line” for compliance with the CAN-SPAM Act of 2003 and all other federal and state laws, rules and regulations.

 

3. Tracking

 

3.1 Lead Purchaser acknowledges that CareInHomes’s tracking system for Leads shall be deemed correct.  When CareInHomes is providing Lead data to Lead Purchaser, Lead Purchaser shall pay for such Lead in accordance with the Insertion Order and/or Portal.

CareInHomes shall have the right to place tracking codes on Advertiser’s websites, Creative or other assets as may be required to track and provide estimated statistics.

 

3.2 Each Campaign that will be distributed via email shall contain a functioning unsubscribe mechanism in accordance with applicable laws, which, when activated by a user, will actually and permanently remove the user’s email address from the Advertiser’s database.  Advertiser shall maintain a master suppression list that includes the email addresses of all users that have activated the Advertiser’s unsubscribe link or otherwise asked to be removed from Advertiser’s email list.  Advertiser shall provide such master suppression list to CareInHomes on a weekly basis (or such shorter time as CareInHomes determines to be necessary in order to comply with applicable law) in the format specified by CareInHomes so that CareInHomes and its affiliates may synchronize their own master suppression lists against Advertiser’s suppression list.

 

3.3 CareInHomes does not screen Leads for their ability to pay for any products or services offered by Lead Purchaser and is not responsible for any non-payment to Lead Purchaser by Leads.

 

4 Billing

 

4.1 Unless otherwise agreed in writing, all payments for Leads and delivered shall be in accordance with CareInHomes’s tracking data described in the Insertion Order and/or Portal.  Unless otherwise provided in an Insertion Order and/or the Portal, all payments will be made in advance.  Lead Purchaser shall pay the prepayment described in the applicable Insertion Order, Portal, and/or as otherwise agreed.  If Lead Purchaser receives invoices, invoices will be submitted weekly or on an as needed basis with payment due seven (7) days from the date of invoice (which may be sent by email and/or postal mail).  All payments must be in U.S. funds unless specified differently on the Insertion Order and/or the Portal.  In the event Leads are paid for via credit card, CareInHomes will not send an invoice, but will email a receipt or otherwise make a receipt available on the Portal.

 

4.2 In the event of a dispute between Lead Purchaser and CareInHomes regarding amounts due, or upon failure of a third-party’s tracking mechanism Lead Purchaser agrees that CareInHomes’s tracking count shall be applied and Lead Purchaser shall make the applicable payments despite such failure.  In the event that CareInHomes does not receive a written notification of a disputed bill, with rationale and support specifically set forth therein, within seven (7) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed.  Lead Purchaser acknowledges CareInHomes’s reliance upon this provision in making payments to participants in its network.

 

4.3 Any late payments will accrue interest equal to one and one half percent (1.5%) per month or the maximum amount allowable under law, whichever is less.  CareInHomes shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses and costs) incurred in attempting to collect payment from Lead Purchaser.

 

4.4 In the event that CareInHomes allows payment by credit card and Lead Purchaser pays with credit card, Lead Purchaser expressly agrees not to charge back on the credit card account.  In the event of a chargeback, Lead Purchaser agrees to immediately reinstate the payment in favor of CareInHomes and to pay a reinstatement service fee in the amount of $75.00.  Any and all transaction fees imposed upon CareInHomes for the payment by a credit card will be the Lead Purchaser’s responsibility.

 

5 Warranties

 

5.1 Lead Purchaser represents and warrants, on behalf of itself and the products and services it advertises, that:  (i) it holds all necessary rights to permit the use of all Creative and other materials provided to CareInHomes; (ii) that the use, reproduction, distribution, transmission or display of any Creative and any materials to which users can link, any products or services made available through the Creative, or the use of any data collected through a Creative or Campaign will not (A) violate any federal, state, or local law, rule, regulation, or policy (including but not limited to the Medicare, Medicaid, and Veterans’ Administration marketing policies, Federal Trade Commission Act, CAN-SPAM Act of 2003 and/or any applicable rules or regulations of the Federal Trade Commission, UK Data Protection Act of 1998 and amendments thereto and all other laws governing advertising practices on the Internet), give rise to criminal or civil liability or infringe any copyright, patent, trademark or service mark, trade secret rights, proprietary rights, or any other personal, moral, contract, property or privacy right of any third party (collectively “Unlawful Conduct”); (B) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, or hacking (collectively “Offensive Conduct”); or (C) encourage conduct that would constitute Unlawful Conduct or Offensive Conduct; (iii) all products and/or services it provides to the Lead shall be provided in accordance with the products/services specifications and in compliance with all laws, rules, regulations, and standards; (iii) it has the right to provide the products and/or services to the Leads; (iv) it has a reasonable basis for all claims made within the Creative, possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Campaigns; (v) the landing page for each Campaign (i.e., the Advertiser’s website page where a consumer is directed when the consumer clicks on the Creative, fills in a registration form or takes a similar action or a mini-site created by CareInHomes) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Advertiser’s use, collection, disclosure and security of their personal information; (vi) all consumer data collected by Lead Purchaser shall only be used for legal purposes; (vii) no data collected shall be used for online preference marketing absent consumer’s express consent obtained after clear and conspicuous notice of such potential use; (viii) no products and/or services is targeted to children under the age of eighteen (18) and/or offers products or services that are illegal for minors to buy, possess or participate in; (ix) it will not load any computer program onto an individual’s computer, in connection with the Campaign, including without limitation programs commonly referred to as adware or spyware but excluding cookies, without CareInHomes’s prior written approval and the individual’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded; and (x) Lead Purchaser shall fulfill any and all commitments made with respect to its products and/or services and contained in its Creative.

 

5.2 Each party represents and warrants that it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement.  Any agency agreeing this Agreement on behalf of an advertiser client, represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this Agreement and shall provide written proof of such authority.

 

5.3 Lead Purchaser represents and warrants that any fees paid to CareInHomes under this Agreement, an Insertion Order and/or the Portal shall not be derived from any federal, state or municipal governmental agency assistance program funds, which programs prohibit use of such funds for the purpose of buying Leads.

 

5.4 Lead Purchaser agrees to defend, indemnify and hold CareInHomes, its third party media placement sources, third party publishers and list providers, CareInHomes Partners and their respective affiliates, employees, officers, agents, directors and representatives, harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, court costs and witness fees) arising out of or related to any claim (i) of a breach of warranty; (ii) of failure of Lead Purchaser’s products and/or services, the Campaign or the Creative to comply with applicable laws, rules or regulations; (iii) regarding the Campaign or Creative or the product or service advertised by the Campaign or Creative or provided to the Lead; (iv) breach of this Agreement; or (v) related to or arising out of use by Lead Purchaser of federal, state or municipal governmental agency funds for payment of fees pursuant to this Agreement, an Insertion Order, and/or the Portal.  Advertiser agrees to defend CareInHomes, its third party media placement sources, third party publishers and list providers, CareInHomes Partners and their respective affiliates, employees, officers, agents, directors and representatives, at CareInHomes’s sole discretion

 

6 Limitations of Warranties and Liability

 

6.1 THE SERVICES AND CAMPAIGNS PROVIDED BY CAREINHOMES, ANY CREATIVE OR LEAD PROVIDED BY CAREINHOMES, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CAREINHOMES MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN.  CAREINHOMES DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE LEADS INTO SALES.  CAREINHOMES DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT OR A RESPONDENT’S ABILITY TO PAY FOR LEAD PURCHASER’S PRODUCTS OR SERVICES.   CAREINHOMES DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN.  THE PORTAL AND ALL INSERTION ORDERS ARE CONTINGENT UPON CAREINHOMES’S ABILITY TO PROCURE NECESSARY ONLINE ACCESS AND CAREINHOMES IS NOT RESPONSIBLE FOR DELAYS CAUSED BY FORCE MAJURE, ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.  CAREINHOMES WILL USE REASONABLE EFFORTS TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SUCH DATES.  LEAD PURCHASER EXPRESSLY UNDERSTANDS AND AGREES THAT CAREINHOMES DOES NOT WARRANT THAT THE CREATIVES OR LEADS ARE FREE OF CLAIMS OF PATENT, TRADEMARK, TRADE SECRET, COPYRIGHT, OR OTHER PROPRIETARY RIGHTS INFRINGEMENT BY A THIRD PARTY.

 

6.2 CAREINHOMES SHALL NOT HAVE ANY LIABILITY TO THE LEAD PURCHASER FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, STATUTE OR OTHERWISE, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), INCLUDING (WITHOUT LIMITATION) LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  IN NO EVENT SHALL CAREINHOMES BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY DAMAGES IN EXCESS OF THE FEES PAID BY LEAD PURCHASER FOR THE LEADS IN THE THREE (3) MONTH PERIOD PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEMDY.

 

7 Term and Termination

 

7.1 This Agreement shall continue for a period of three (3) years from the Effective Date and shall automatically renew for additional three (3) year periods unless either party provides written notice of termination ninety (90) days prior to any renewal period.

 

7.2 CareInHomes reserves the right to terminate this Agreement immediately in the event (i) a Campaign does not meet minimum Campaign performance criteria; (ii) Lead Purchaser violates the payment terms set forth herein; or (iIi) CareInHomes provides ten (10) days written notice.

 

7.3 This Agreement or any Insertion Order or order via the Portal hereunder may be terminated prior to expiration or completion in accordance with the following: (i) by either party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern; or (ii) by either party in the event the other has failed to perform any obligation required to be performed under this Agreement or Insertion Order or the Portal and such failure is not corrected within thirty (30) days from receipt of written notice advising of such failure from the other party.

 

8 Proprietary Matters

 

8.1 Each party agrees at all times to keep strictly confidential all Confidential Information (as hereafter defined) belonging to the other party and Lead Purchaser agrees to keep strictly confidential all Confidential Information of CareInHomes Partners.  “Confidential Information” shall mean any information, technical data or know-how including, but not limited to, that which comprises or relates to the other party’s confidential and proprietary trade secrets, hardware, software (source code and object code), screens, specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, customer names and other information related to customers, price lists, pricing policies and financial information or other business and/or technical information and materials, in oral, demonstrative, written, electronic, graphic or machine-readable form and any analyses, compilations, studies or documents related thereto, including such information of CareInHomes Partners.

 

8.2 Each party shall at all times protect and safeguard the Confidential Information of the other and agrees not to, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement.  Each party shall take every reasonable precaution to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.  The parties agree, however, that CareInHomes may disclose Confidential Information on a confidential basis to a consultant in connection with any work that the consultant is performing on behalf of CareInHomes or to CareInHomes Partners.

 

8.3 Lead Purchaser agrees that it will not use any Confidential Information for its own purpose or for the benefit of any third party and shall honor the copyrights and other intellectual property rights of CareInHomes and/or a CareInHomes Partner.

 

8.4 Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that:  (i) is, or at any time becomes, a part of the public domain through no act or omission of the receiving party; (ii) is independently discovered or developed by the receiving party without use of the disclosing party’s Confidential Information;  (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party.  In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the party whose Confidential Information is to be so disclosed so that such party may seek a protective order and/or engage in other efforts to minimize the required disclosure.  The parties shall cooperate in seeking the protective order and engaging in such other efforts.

 

8.5 Nothing in this Agreement shall preclude CareInHomes from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by CareInHomes in the performance of services hereunder or providing the Campaigns.

 

8.6 Any software (including object code and source code), HTML, marketing materials (including videos and other collateral promoting Advertiser products and services), and any other products provided to Advertiser by CareInHomes (collectively “CareInHomes Proprietary Property”) shall be the sole property of CareInHomes and CareInHomes shall own all right, title, and interest in such CareInHomes Proprietary Property.  Advertiser shall have the right to use such CareInHomes Proprietary Property solely any connection with the services provided by CareInHomes in connection with the Campaigns.  Any other use of the CareInHomes Proprietary Property is strictly prohibited including, but not limited to, the use of the CareInHomes Proprietary Property by any other Advertiser affiliate, partner or agent.  Upon termination or expiration of this Agreement, Advertiser’s right to use the CareInHomes Proprietary Property shall immediately cease.

 

8.7 Lead Purchaser acknowledges that the persons who have elected to co-register or sign-up with Lead Purchaser also may have elected to register with CareInHomes and/or its CareInHomes Partners and may have elected to co-register and/or sign up with additional Lead Purchasers.  Therefore, Lead Purchaser acknowledges that CareInHomes and the CareInHomes Partners retain all rights to market and communicate to such persons, consistent with their policies and procedures.

 

8.8 The parties agree and understand that a material breach of this Section will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage.  Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond.  The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement.

 

9 Relationship

 

9.1 During the term of this Agreement and for a period of twelve (12) months after expiration or termination of this Agreement, Lead Purchaser shall not take any action to circumvent CareInHomes’s relationships with the CareInHomes Partners.  Furthermore, Lead Purchaser shall not, directly or indirectly, work with, or accept any services from, any CareInHomes Partners without CareInHomes’s prior written consent.  This provision shall not apply to the extent Lead Purchaser is already working with CareInHomes Partners as of the Effective Date as evidenced by Lead Purchaser’s written records which shall be provided to CareInHomes and which shall be accepted in CareInHomes’s sole discretion.

 

9.2 During the term of this Agreement and for twelve (12) months hereafter, Lead Purchaser agrees not to solicit, induce, recruit or encourage, directly or indirectly any online publisher, web site, network, or email provider that is affiliated with CareInHomes or any CareInHomes Partner to reduce or stop doing business with CareInHomes.

 

10 Miscellaneous

 

10.1 Except for Lead Purchaser’s payment obligations, neither party shall be liable for, or considered in breach of or default under this Agreement on account of, any delay or failure to perform as required as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence (including without limitation, the failure of any CareInHomes Partners to display or place a Campaign).

 

10.2 This Agreement shall be governed by the laws of the state of Texas without regard to the conflict of laws provisions of any state or jurisdiction.  The parties consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division in Austin, Texas.  The parties specifically waive any international treaties or other international law, which may govern the court or location of resolution of any dispute between them.  The parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement.

 

10.3 All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following addresses (or at such other address for a party as shall be specified by like notice:  (i) if to CareInHomes, to the attention of both the CEO and CFO at Northpoint Centre 1, 6836 Austin Centre Blvd. Ste. 260 Austin TX 78731; and (ii) if to Lead Purchaser, to the attention of the contact information in the Insertion Order.

 

10.4 Lead Purchaser shall not assign or transfer this Agreement or any Insertion Order without the prior written consent of CareInHomes.  Any attempt to assign or transfer this Agreement by Lead Purchaser shall be void.

 

10.5 Each party is an independent contractor.  Any intention to create a joint venture or partnership between the parties is expressly disclaimed.  Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.

 

10.6 This Agreement, exhibits or addendum thereto and applicable Insertion Orders constitutes a valid and binding agreement between the parties, and has been duly executed by an authorized representative of each party.  This Agreement and any exhibits or addenda thereto is intended to be the parties’ complete, integrated expression of the terms of their agreement and any prior agreements or understandings with respect to such subject matters are superseded hereby and fully merged herein, and may only be modified in writing by authorized representatives of the parties.

 

10.7 Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening, including without limitation, Sections 1.1, 4, 5, 6, 8, 9, and 10.  Each party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder.  In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement, (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.

 

10.8 During the term of this Agreement and for a period of two (2) years thereafter, Lead Purchaser agrees not to hire, solicit, nor attempt to solicit, the services of any employee or consultant of CareInHomes without the prior written consent of CareInHomes.  Lead Purchaser further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or consultant of CareInHomes for a period of one (1) year from such former employee's or consultant’s last date of service with CareInHomes.

 

10.9 Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity.  Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter.  Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.

 

10.10 This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument.  For purposes hereof, a facsimile copy or electronic scan of this Agreement shall be deemed to be an original.

 

10.11 CareInHomes reserves the right, at its sole discretion, to modify this Agreement at any time by posting a notice on the Portal, or by sending Lead Purchaser a notice via email or postal mail.  Any continued receipt of Leads or access to the Portal shall be deemed Lead Purchaser’s consent to the modified terms and conditions.

 

10.12 In the event that CareInHomes is required to digitally sign, accept, or acknowledge additional terms when using Advertiser’s online advertising network or accessing Campaigns or Creatives, the parties acknowledge and agree that such digital agreement or acknowledgement is null and void and in no way binding on CareInHomes.  Therefore, any terms which appear on such digital agreement are to be disregarded and deemed non-effective.

 

 

 

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