1.Services and Terms of Payment.
(A) Services. Company will engage in the collection of Lead contact information and provide such contact information to Advertiser.
(B) Terms of Payment. Advertiser will pay Company a rate of $175 for each individual Lead and their Lead contact data. Lead contact data cannot be rejected for any reason. Late payments bear interest at the rate of 1.5% per month, or the highest rate permitted by law, after thirty (30) days have passed from the delivery of the Lead contact data. Additionally, Company is entitled to recover any reasonable sums expended in connection with enforcement of this Agreement including, but not limited to, the collection of amounts not paid when due, including all collection agency fees and attorneys’ fees. Payment of any fees shall not be contingent in any manner upon enrollment of the Lead in Advertiser’s educational programs.
(A)Lead Collection and Delivery. When an individual is interested in receiving information from Advertiser, Company will collect the contact information of such individual (a “Lead”). Company shall use its own Lead generation form(s) (“Form”) to obtain Leads. Leads will be delivered to Advertiser in the form of an email to the designated address provided by Advertiser.
(B) Qualified Leads. All Lead data sent over to Advertiser is qualified and considered payable. Company will not accept any rejected Leads.
4.Indemnification. Advertiser agrees to hold harmless, indemnify and defend Company, its affiliates, and their respective successors and assigns, and the shareholders, members, directors, officers, employees and agents of any and all of the foregoing (“Company Indemnified Parties”) from and against any losses, damages, costs and expenses (including reasonable attorneys' fees and costs) arising out of or relating to any claims: (a) that the Advertiser breached or allegedly breached its confidentiality obligations hereunder, (b) that the Advertiser breached its warranties or representations as set forth herein; and (c) claims relating to Advertiser’s (or if Advertiser is Agency, then Agency’s Client’s) business, education programs or trademarks, copyrights, or any other materials provided by or made available by Advertiser. The Advertiser’s obligations are conditioned upon the Company Indemnified Parties: (i) giving the Advertiser written notice of any claim, action, suit and proceeding for which the Company Indemnified Parties are seeking indemnity; (ii) granting control of the defense and settlement to the Advertiser; and (iii) providing, at the Advertiser’s expense, reasonable assistance in the defense or settlement thereof. In any event, the Company Indemnified Parties shall have the right to participate, at their own expense, in the defense or settlement of any claim, action, suit and proceeding that is the subject of an indemnification obligation. If any settlement results in any ongoing liability to, or prejudices or detrimentally impacts Company, and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require the Company’s written consent, which consent shall not be unreasonably be withheld.
5.Confidential Information. Company and Advertiser understand and agree that in connection with the negotiation and performance of this Agreement, each party may have had or have access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other party, including, but not limited to, trade secrets and any other information that the receiving party reasonably should know is confidential (“Confidential Information”). Each party (on its behalf and on behalf of its subcontractors, employees or representatives, or agents of any kind) agrees to hold and treat all Confidential Information of the other party in confidence and will protect the Confidential Information with the same degree of care as each party uses to protect its own Confidential Information of like nature. Between the parties, Company shall retain ownership of Lead contact information and any data relating to Lead behavior when a Lead interacts with Company’s offers or services. Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publically available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representatives); (ii) is available to the receiving party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving party without violating its obligations under this Agreement or under any federal or state law. This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosures. The Confidential Information will not, without the prior written consent of the other party, be disclosed to any third party, except that the receiving party may disclose the Confidential Information or portions thereof to (a) its directors, officers, employees, agents and representatives on a need-to-know basis, or (b) as may be required by law, applicable regulation or judicial process, provided, however, that if the receiving party is required to disclose such Confidential Information under this Section 8, the receiving party shall promptly notify the disclosing party of such pending disclosure and consult with the disclosing party prior to such disclosure as to the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information. Neither party shall use any Confidential Information received from the other party except as may be necessary in its performance under this Agreement. The parties acknowledge that unauthorized use by a party of the other party’s Confidential Information will diminish the value of such information and that breach of this obligation may cause irreparable harm and entitle the non-breaching party to seek injunctive relief to protect its interest herein, in addition to any other monetary or other remedies it may be entitled to hereunder.
6.DISCLAIMER OF WARRANTY. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT PROVIDE ANY WARRANTY THAT OPERATION OF ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE
7.LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, FOR THE OPERATION OR USE OF CONTENT OR SERVICES, SUCH DAMAGES ARISING FROM OR RELATED TO LOSS OF OR DAMAGE TO DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE FOR ANY ACTS OR OMISSIONS OF THIRD PARTIES. COMPANY’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES PAID BY ADVERTISER TO COMPANY FOR SERVICES HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE A CLAIM IS RAISED HEREUNDER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
8.Miscellaneous. No conditions other than those set forth in this Agreement or these Terms and Conditions shall be binding on Company unless expressly agreed to in writing by the Company. No modifications to these Terms and Conditions shall be binding upon the Company. The parties agree that Company shall have the right to reference and refer to its work for and relationship with Advertiser for marketing and promotional purposes. The parties agree that their relationship hereunder is that of independent contractors. Neither party shall be deemed to be the agent, partner, joint venture, franchisor-franchisee, or employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf other than as set forth in this Agreement or these Terms and Conditions. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without reference to any principles of conflicts of laws, which might cause the application of the laws of another state. Any action instituted by either party arising out of this Agreement shall only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in Hudson County, New Jersey, USA. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN HUDSON COUNTY, NEW JERSEY, USA.