a. Client Representations and Warranties. Client represents, warrants and agrees that:
(i) Client has complied and will comply with all applicable federal, state and local laws and regulations in connection with the operation of Client's business and the performance of Client's obligations under this Agreement.
(ii) Client is engaged in the Business. During and after the termination of this Agreement, Client: (1) will only use the Premium Live Transfers purchased from RateSpecial and any Lead Data related to any such Premium Live Transfers for such Business and for no other purpose and (2) will not sell, assign or otherwise transfer, whether for or without consideration, any Premium Live Transfers or any Lead Data related to any Premium Live Transfers.
(iii) Client will treat Consumers in a professional and courteous manner and in accordance with industry practices, and will keep Consumers fully informed.
(iv) Client shall maintain and keep in effect at all times insurance coverages of such types and in such amounts as are customarily maintained by businesses which conduct activities similar to Client.
(v) Client is duly organized, validly existing and in good standing, and the Client's execution, delivery and performance of this Agreement does not violate any existing agreement to which Client is a party or by which Client is bound.
b. Client Connectivity. Client is solely responsible for maintaining all hardware and software that may be necessary in order for Client to access the Web Application and all telecommunications equipment necessary to receive telephone calls at the Primary Number and the Secondary Number. In the event that Client, for any reason, is unable to access the Web Application, is unable to receive calls at the Primary Number or the Secondary Number or does want to receive Premium Live Transfers that Client has ordered, Client may request that RateSpecial cease providing Premium Live Transfers to Client for up to one Business Day by placing Client's Purchase Order "On-Hold." RateSpecial shall not be required to place Client's Purchase Order "On-Hold" until RateSpecial has received notice of Client's request in a manner described in Section 6(i) of this Agreement (which may include the via the Web Application). Client may only place a Purchase Order "On-Hold" for more than one Business Day with the express written consent of RateSpecial.
c. Limitation of Liability. CLIENT AGREES THAT THE AGGREGATE LIABILITY OF RATESPECIAL AND/OR RATESPECIAL'S STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, LEAD SUPPLIERS AND BUSINESS PARTNERS TO CLIENT FOR ANY ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED (I.E., MAY NOT BE MORE THAN (BUT CAN BE LESS THAN)) TO THE AMOUNT PAID BY CLIENT TO RATESPECIAL DURING THE THREE MONTH PERIOD (OR SUCH SHORTER PERIOD DURING WHICH THIS AGREEMENT WAS IN EFFECT) PRIOR TO THE TERMINATION OF THIS AGREEMENT.
FURTHERMORE, IN NO EVENT SHALL RATESPECIAL, ITS STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, LEAD SUPPLIERS AND/OR BUSINESS PARTNERS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, EVEN IF RATESPECIAL AND/OR ITS STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, LEAD SUPPLIERS AND/OR BUSINESS PARTNERS WERE ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES AND/OR WERE NEGLIGENT.
THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE. IN JURISDICTIONS THAT PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY, LIABILITY HEREUNDER IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
d. Indemnification. Client agrees to indemnify and hold harmless RateSpecial and its stockholders, directors, officers, employees, agents and affiliates (each, a "RateSpecial Indemnified Party" and collectively, the "RateSpecial Indemnified Parties") from and against (and will pay upon demand each RateSpecial Indemnified Party the amount of) any and all losses, liabilities, claims, costs (including costs of investigation and defense), damages and expenses (including attorneys fees) which any RateSpecial Indemnified Party may sustain resulting from, arising out of, relating to or caused by (i) any breach by Client of any covenant or other agreement of Client contained in this Agreement or (ii) any breach of any representation or warranty made by Client in this Agreement. In connection with any action or proceeding that may give rise to an obligation of Client to indemnify a RateSpecial Indemnified Party, the RateSpecial Indemnified Party shall have the exclusive right, at its option, to defend, compromise and/or settle the action or proceeding, and the Client shall be bound by the determination of any action or proceeding so defended or any compromise or settlement so effected. The remedies provided in this Section 6(d) are not exclusive of and do not limit any other remedies that may be available to any RateSpecial Indemnified Party.
e. California Waiver. If you are a California resident, to the extent permitted by California law, you waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor" as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.
f. RateSpecial Disclaimer Regarding Leads. All Premium Live Transfers are provided by RateSpecial to Client "AS IS", and the only representation or warranty RateSpecial makes to Client with respect to a Premium Live Transfer is that the Consumer agreed to have the telephone call transferred in the manner described in this Agreement. RateSpecial makes no representation or warranty to Client as to manner or method by which RateSpecial obtained any Leads or as to the accuracy of the Lead Data that RateSpecial makes available to Client (other than with respect to the Filtered Items as described in Section 4 of this Agreement).
g. Taxes. The agreed upon price of the Premium Live Transfers sold to Client does not include sales, use, excise or any other tax or assessment that may be levied by any governmental authority. RateSpecial may add any such sales, use, excise or other tax or assessment to the amounts to be paid by Client to RateSpecial pursuant to this Agreement. In addition, upon demand, Client agrees to pay to RateSpecial any sales, use, excise or any other tax or assessment levied by any governmental authority with respect to any of the products or services sold to Client pursuant to this Agreement.
h. No Joint-Venture. Nothing contained in this Agreement creates or is intended to create an association, trust, partnership or joint venture or impose a trust or partnership duty, obligation or liability on or with regard to either Party. Neither Party nor any employees or agents of a Party shall have, nor represent themselves as having, any authority to approve or accept any proposal on behalf of the other Party, or make any promise, representation, contract or other commitment binding upon the other Party. Each Party accepts full and exclusive liability for its personnel's salaries, employee benefits, allowances for vacation, sick leave, holiday pay, employee insurance and retirement benefits, all payroll taxes, workers'; compensation and employer';s liability insurance, and other insurance premiums measured by payroll costs, and all other contributions and benefits imposed by any applicable law or regulation upon employees of an employer. Neither Party shall be responsible for any personnel administration matters of the other Party as such relate or are applied to such personnel including, without limitation, pay, internal discipline, equal opportunity or discrimination claims.
i. Notices. All notices, requests, consents, demands or other communications that may be or are required to be given under this Agreement shall be in writing and shall be deemed duly given and received (a) upon personal delivery to the Party to whom it is directed; (b) seven days after being sent by certified or registered mail return receipt requested, to the Party to whom it is directed, postage and charges pre-paid; (c) one Business Day after being sent by express overnight delivery by a national carrier to the Party to whom it is directed; (d) upon being transmitted by facsimile to the Party to whom it is directed so long as the sender retains the confirmation copy indicating that the facsimile was received by the Party to whom its is directed; or (e) if sent by electronic mail or any other electronic means (e.g., sent via a proprietary RateSpecial web-based application), upon actual receipt (electronic mail or any other electronic means shall constitute a writing for purposes of this Agreement). All notices, requests, consents, demands and other communications shall be addressed at the addresses set forth in this Agreement (which addresses may be changed from time to time by either Party by providing notice to the other in the manner set forth above).
j. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If it is determined that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
k. Waiver of Contractual Right. The failure of RateSpecial to enforce any provision of this Agreement shall not be construed as a waiver or limitation of RateSpecial's right to subsequently enforce and compel strict compliance with that provision or any other provision of this Agreement.
l. Applicable Law. This Agreement, including, without limitation, all questions concerning the construction, validity, and interpretation of this Agreement and the performance of the obligations imposed by this Agreement, shall be governed by the laws of the State of California, excluding any law or conflicts of law principle that would apply the law of another jurisdiction.
m. Jurisdiction and Venue. EXCLUSIVE JURISDICTION FOR ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR EITHER PARTY'S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT SHALL BE THE UNITED STATES DISTRICT COURT FOR THE STATE OF CALIFORNIA OR, IF FEDERAL JURISDICTION IS NOT AVAILABLE, IN THE APPROPRIATE COURT OF THE STATE OF CALIFORNIA; PROVIDED, HOWEVER, THAT IN THE EVENT RATESPECIAL IS SUED OR JOINED BY A THIRD PARTY IN ANY OTHER COURT OR IN ANY OTHER FORUM IN RESPECT OF ANY MATTER WHICH MAY GIVE RISE TO A CLAIM BY RATESPECIAL HEREUNDER, CLIENT CONSENTS TO THE JURISDICTION OF SUCH COURT OR FORUM OVER ANY CLAIM WHICH MAY BE ASSERTED BY RateSpecial THEREIN. CLIENT IRREVOCABLY CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. IN ADDITION, AND NOTWITHSTANDING THE FOREGOING, CLIENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT CLIENT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON CLIENT AND MAY BE ENFORCED IN ANY COURT IN WHICH CLIENT IS SUBJECT TO JURISDICTION BY A SUIT UPON SUCH JUDGMENT.
o. RateSpecial Opportunity to Cure. Prior to taking any action against RateSpecial as a result of RateSpecial's breach of its obligations under this Agreement, Client shall provide RateSpecial with written notice of the breach and RateSpecial shall have fifteen (15) Business Days to cure such breach, provided, however, with respect to any breach which is not reasonably curable within such fifteen (15) Business Day period, RateSpecial shall have such additional period of time to cure such breach, up to ninety (90) days, if RateSpecial shall have promptly commenced to cure such breach within such fifteen (15) Business Day period.
p. Fees. Unpaid fees to RateSpecial shall bear interest at the lesser of (i) 1-1/2% per month or 18% per year on the unpaid balance or (ii) the maximum amount permitted by law. A $25.00 returned check fee will be added for all returned checks. RateSpecial shall be entitled, in addition to all damages available to it, to its reasonable attorney fees in the pursuit of the payments due it under this Agreement and/or in connection with its enforcement of this Agreement and all expenses (including litigation expenses) relating thereto whether or not it is necessary to file suit.
Client acknowledges and agrees that any credit card and related billing and payment information that Client provides RateSpecial may be shared by RateSpecial with companies that work on RateSpecial's behalf, such as payment processors, solely for the purposes of effecting payment to RateSpecial and servicing Client's account. RateSpecial may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. RateSpecial shall not be liable for any use or disclosure of such information by such third parties.
q. Survival. The provisions of this Agreement that by their nature are reasonably intended to survive the Agreement's termination, including, but not limited to, Section 6 of this Agreement, shall survive the termination of this Agreement. In addition, any of Client's obligations under any provision of this Agreement which have accrued but have not been fully satisfied, performed or complied with prior to the termination of this Agreement shall survive the termination of this Agreement to the extent necessary for the full and complete performance of such provisions.
r. Confidentiality of this Agreement. Except where disclosure is required by applicable law or is necessary in connection with the conduct of Client's business, Client agrees to keep confidential the terms of this Agreement, including, but not limited to, the fee and remittance terms
s. Parties in Interest. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties to this Agreement and their respective successors, heirs, legatees, personal representatives and assigns permitted by this Section 6(s). In addition, certain provisions of this Agreement are intended to benefit the stockholders, directors, officers, employees, agents, affiliates, Lead suppliers and/or business partners of RateSpecial, and each such person is an intended third party beneficiary of this Agreement. No assignment, delegation or other conveyance of this Agreement or of any rights or obligations hereunder may be made by Client (by operation of law or otherwise) without the prior written consent of RateSpecial. RateSpecial may assign any of its rights and obligations under this Agreement to any other party.
t. Force Majeure. Notwithstanding anything to the contrary contained herein, in the event RateSpecial shall be delayed or hindered in, or prevented from, the performance of any act required of it under this Agreement by reason of failure of power, telecommunications or connectivity failure, computer malfunctions, restrictive governmental laws or regulations, a labor dispute, industry disturbance, fire, unusually severe weather conditions, riot, insurrection, war, act of terrorism, act of God or any circumstance or cause beyond the control of RateSpecial in the reasonable conduct of its business (each such cause or event being hereinafter referred to as a "Force Majeure"), then performance of such acts will be excused for the period of the delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay. Any time there exists a Force Majeure that is expected to result in a significant failure or delay, RateSpecial shall use reasonable efforts to give notice to Client describing the Force Majeure and the nature of the failure or delay and an estimate as to how long the delay will be.
u. Headings; Etc. The headings and other captions in this Agreement are for convenience of reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement. Common nouns and pronouns will be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the context may require.
v. Explanatory Statement. The Explanatory Statement to this Agreement is deemed a part of and is incorporated by reference into this Agreement.
w. Non-Exclusive Agreement. The Parties acknowledge and agree that this Agreement is non-exclusive. In that regard, Client may purchase Leads, Lead Data and "Premium Live Transfers" related thereto from any other person or entity and RateSpecial may sell Leads, Lead Data and "Premium Live Transfers" related thereto to any other person or entity.
x. Form of Execution of this Agreement. If this Agreement is entered into by the Parties' execution of a tangible (i.e., non-electronic) document, then such document may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and facsimile signatures shall have the same effect as original signatures.
This Agreement may be entered into by the Parties by the Client's clicking on the "Accept" (or similarly worded) icon (the "Acceptance Icon"). Upon Client's clicking on the Acceptance Icon, this Agreement shall be binding upon Client and RateSpecial.
y. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the transactions contemplated hereby, and supersedes all prior negotiations, representations, warranties, commitments, offers, contracts and writings with respect to such transactions, whether written or oral. In the event of a conflict between any Purchase Order and any of the other terms of this Agreement, such other terms of this Agreement shall control. Except as provided or contemplated by this Agreement, this Agreement shall not be amended except by a writing signed by both Parties. No waiver of any provision of this Agreement is effective unless made in writing and duly signed by the Parties referring specifically to this Agreement, and then only to the specific purpose and extent so provided.
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