Terms and Conditions
MASTER MARKETING AND LEAD GENERATION AGREEMENT
Updated 9/25/2017, 12/7/2017
THIS MASTER MARKETING AND LEAD GENERATION AGREEMENT (“AGREEMENT”) SETS OUT THE TERMS THAT APPLY TO YOUR RECEIPT OF SENIOR LIVING LEADS FROM CARING. REFERENCES TO “YOU”, “YOUR” OR “CUSTOMER” MEAN THE ENTITY TO BE RECEIVING LEADS. ALL REFERENCES TO “CARING”, “OUR”, OR “US” MEAN CARING, LLC, A DELAWARE CORPORATION (CARING AND CUSTOMER ARE EACH A “PARTY” AND COLLECTIVELY, THE “PARTIES”). THIS IS A LEGAL AGREEMENT BETWEEN YOU AND CARING. BY ENTERING INTO A WORK ORDER WITH CARING, YOU AGREE TO BE BOUND BY THESE TERMS. PLEASE REVIEW CAREFULLY.
Caring assists parties in identifying persons that may be interested in their senior care products and services, as further described in a Work Order (“Services”). Customer wishes to engage Caring to assist it in identifying persons to whom Customer may wish to market its senior care products and services as set forth in this Agreement, on a per-Lead basis, as further set forth in this Agreement. A “Lead” means data provided to Caring by or about an individual for the purpose of obtaining senior care product or service information that is then submitted by Caring to Customer.
Caring and Customer may enter into one or more Work Order(s) for Caring’s provision of Services to Customer, and Customer shall purchase, the Services in accordance with the terms of this Agreement and such Work Order(s).
Services shall be provided for the per-Lead compensation set forth in each Work Order (the “Fees”). Such Fees shall be charged on a credit/debit card or, if alternative payment method is approved, due and payable within thirty (30) days of the date of the invoice, or as otherwise set forth in the applicable Work Order. Each payment that is more than thirty (30) days past due shall be assessed an administrative fee of US$100 and shall accrue interest from the thirty-first (31st) day such payment is past due at a rate equal to the lesser of (a) the lower of the maximum non-usurious rate of interest permitted at any time or from time to time by federal or New York laws, whichever is applicable, and (b) eighteen percent (18%).
3. TERM AND TERMINATION.
Unless otherwise stated in the Work Order, this Agreement commences on the Effective Date and shall continue for one (1) year (“Initial Term”). If neither party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term, this Agreement shall automatically renew for additional one month periods (each, a “Renewal Term”, and with the Initial Term, collectively, the “Term”). After the Initial Term, either Party may terminate this Agreement: (a) for convenience upon thirty (30) days written notice to the other Party; or (b) immediately upon providing written notice if a Party fails to cure a breach of this Agreement within fifteen (15) days after receiving written notice of such breach. Upon termination or expiration of this Agreement, Customer shall promptly pay to Caring any outstanding Fees. Sections 2 through 10 of this Agreement shall survive termination of this Agreement.
4. REPRESENTATIONS AND WARRANTIES.
Each Party represents and warrants that: (a) it has the right, power and authority to enter into this Agreement and to perform its obligations hereunder, and such execution and performance will not violate any other agreement or obligation to which it is bound; (b) it is duly organized, validly existing and in good standing; and (c) it has complied and will comply with all applicable federal, state and local laws, regulations, rules, ordinances, licensing requirements and industry standards and guidelines in connection with its performance of or relating to this Agreement (“Laws”); provided however, that Caring’s obligation to comply with Laws shall be conditioned upon Customer’s compliance with its representations, warranties, covenants and obligations contained in this Agreement.
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES MADE OR REFERENCED IN THIS AGREEMENT, CARING HEREBY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE, AS TO ANY AND ALL DATA, ITEMS, PLATFORMS OR SERVICES PROVIDED BY OR ON BEHALF OF CARING PURSUANT TO THIS AGREEMENT. IN ADDITION, CARING MAKES NO REPRESENTATION AND PROVIDES NO GUARANTEE THAT THE OPERATION OF THE CARING WEBSITES, PLATFORMS OR THE PROCESS BY WHICH LEADS OR OTHER SERVICES ARE PROVIDED TO CUSTOMER WILL BE UNINTERRUPTED OR ERROR-FREE, AND CARING WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS TO ANY OF THE FOREGOING. THIS DISCLAIMER EXPRESSLY INCLUDES ANY REIMBURSEMENT FOR LOSSES OF INCOME DUE TO DISRUPTION OF SERVICE. WITHOUT LIMITING THE FOREGOING, CARING MAKES NO WARRANTIES OR REPRESENTATIONS, AND CARING WILL HAVE NO LIABILITY OF ANY KIND, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF ANY LEAD.
- Each Party agrees to indemnify, defend and hold harmless the other Party, their affiliates and their respective officers, directors, employees, contractors and agents against and from all third party liability, losses, damages, obligations, judgments, claims, causes of action, and expenses associated therewith (including settlements, judgments, court costs and attorneys’ fees as and when incurred) to the extent resulting from or arising out of, directly or indirectly, (i) any breach of a representation, warranty or covenant hereunder; (ii) the acts, errors or omissions of the indemnifying Party or any of its officers, directors, employees, agents or affiliates; or (iii) fraud, willful misconduct, gross negligence or criminal acts.
- The indemnified Party will provide the indemnifying Party with prompt notice of any claim for which indemnification is sought, except that failure to provide such notice will not excuse the indemnifying Party’s indemnification obligations under this Agreement. The indemnified Party will permit the indemnifying Party to assume and control the defense of such claim, with counsel chosen by the indemnifying Party (who will be reasonably acceptable to the indemnified Party). The indemnified Party will provide written notice regarding whether such counsel is acceptable within a reasonable amount of time. The indemnifying Party will not enter into any settlement or compromise of any such claim without the Indemnified Party’s prior written consent, which consent will not be unreasonably withheld. The indemnifying Party will pay any and all costs, damages and expenses, including, but not limited to, reasonable attorneys’ fees and costs (even if incident to any appeals) awarded against or otherwise incurred by the indemnified Party in connection with or arising from any such indemnified claim, suit, action or proceeding. The indemnifying Party’s obligations under this Section will in no manner be affected by the existence or non-existence of insurance. The indemnified Party’s right to indemnity under this Agreement will arise notwithstanding that joint or concurrent liability may be imposed on both Caring and the Customer and/or its affiliates and subsidiaries by statute, ordinance, regulation or otherwise.
7. CONFIDENTIALITY; CONSUMER INFORMATION.
- Confidential Information. “Confidential Information” means any and all confidential or proprietary information of the disclosing party, whether oral or written, including, without limitation, documents, reports, analyses, data, studies, drawings, samples, suppliers, customers, pricing, pricing techniques, copyright, trademark and patent applications, marketing and sales techniques and plans, projections, technology, methods, procedures, software (including all documentation and code), hardware and system designs, architectures and protocols, trade secrets, know-how, and observations, and other disclosures pertaining to, based on, or containing, directly or indirectly, in whole or in part, any of the disclosing party’s confidential or proprietary information. “Confidential Information” shall also include the terms, but not the existence, of this Agreement. “Confidential Information” shall not include any information that, as evidenced by a written document: (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the receiving party without breach of this Agreement; (iii) was lawfully received by the receiving party from a third party without restriction; (iv) was known to the receiving party, its employees or agents prior to its receipt from the disclosing party, as evidenced by the written records of the receiving party; or (v) was independently developed by the receiving party without use or reference to the Confidential Information and without breach of this Agreement.
- Duty of Confidentiality. The receiving party will: (i) hold the disclosing party’s Confidential Information in strict confidence; (ii) take all steps necessary or appropriate to protect the confidentiality of the Confidential Information and to ensure compliance with this Agreement by its officers, directors, employees, contractors, agents and representatives; (iii) use Confidential Information for the sole purpose of performing pursuant to this Agreement; (iv) restrict disclosure of Confidential Information to those of its officers, directors, employees, contractors, agents and representatives with a need to know such information for the sole purpose of performing pursuant to this Agreement; and (v) not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information.
- Return or Destruction of Confidential Information. Upon termination of this Agreement, at the written request of disclosing party, the receiving party will, at its option, either return to the disclosing party or certify destruction of, any and all copies of the disclosing party’s Confidential Information in the possession of the receiving party, its employees or agents.
- Consumer Information.
- Use Solely for the Purpose. Customer will use and disclose Consumer Information solely for the purpose of responding to a Consumer’s request for or interest in senior care product or service information as a result of a Lead (the “Purpose”). Customer will not rent, sell, resell, disclose, transfer, store, retain or use any Consumer Information except solely as necessary for the Purpose, unless otherwise expressly authorized by or independently collected from the individual, and Customer will permanently delete such Consumer Information within a reasonable time following receipt thereof.
- Disclosure to Customer Representatives. Customer will disclose Consumer Information only to its employees and those parties (collectively, “Customer Representatives”): (1) who have a need to know such Consumer Information for the Purpose; (2) who, with respect to such Consumer Information, are informed of their obligations pursuant to Laws, and are contractually bound to treat the Consumer Information in compliance with Laws and in a manner no less protective than as required of Customer pursuant to this Agreement; (3) in compliance with this Agreement and Laws; and (4) in properly secured or encrypted formats, consistent with industry-standards. As between Customer and Caring, Customer is solely responsible and bears any and all liability related to Customer Representatives’ use of Consumer Information.
- Security Measures. Customer will maintain appropriate physical, technical and organizational measures to protect all Consumer Information against accidental loss or unauthorized access, use, disclosure, alteration, or destruction. Customer will notify Caring promptly in writing of any actual or potential unauthorized or accidental access, use, loss or disclosure of any Consumer Information or a breach of Customer’s security or information systems that could reasonably be expected to expose any Consumer Information to such unauthorized or accidental access or use (“Security Breach”), and shall, at Customer’s sole cost and expense, provide all necessary and reasonable cooperation to Caring in order to comply with Laws related to the Security Breach. At Customer’s sole cost and expense, Caring will provide all necessary and reasonable cooperation to Customer to comply with any Laws applicable to such Security Breach. Without limiting the generality of the foregoing, Customer shall be solely responsible for all costs and expenses related to notification of all consumers who may have a right to be informed of the Security Breach and the investigation and prosecution of such Security Breach as required by Law and as reasonably required by Caring. Customer will provide reasonable cooperation to Caring and any governmental authorities with jurisdiction to audit and verify Customer’s data security systems and procedures in order to confirm Customer’s compliance with this Agreement and Laws.
- Required Disclosures. The receiving party may disclose Consumer Information or other Confidential Information as required by Law, court or administrative order or similar legal requirements. In the event of any such required disclosure, the receiving party will, to the extent permissible under Law, promptly notify the disclosing party in advance of such disclosure and cooperate in any effort to minimize the extent of such disclosure and maintain the confidentiality of such Consumer Information or Confidential Information. If disclosure of such information is required, the receiving party ordered to comply with such disclosure request shall exercise its best efforts to obtain an order or other reliable assurances that Consumer Information and Confidential Information will be treated confidentially by the proposed recipient thereof.
- Remedies. The receiving party acknowledges and agrees that due to the unique nature of the disclosing party’s Confidential Information and Consumer Information, there may be no adequate remedy at law for any breach of its obligations under this Section 7, and that any such breach or any unauthorized use or release of any Confidential Information or Consumer Information may allow the receiving party or third parties to unfairly compete with the disclosing party, resulting in irreparable harm to the disclosing party. Therefore, upon any such breach or any threat thereof, the disclosing party shall be entitled to appropriate equitable relief, including without limitation injunctive relief against any breach of this Section 7, in addition to whatever remedies the disclosing party might have at law, and the disclosing party shall be entitled to be indemnified by the receiving party from any loss or harm, including, without limitation, attorney’s fees, as further set forth in Section 6, in connection with any breach or enforcement of the receiving party’s obligations pursuant to this Section or the unauthorized use or release of any Confidential Information or Consumer Information.
- Revisions. The parties in good faith agree to revisit and amend this Section 7 from time to time as necessary to comply with changes to relevant Laws and any other relevant changes in the industry generally.
8. LIMITATION ON SHARING LEADS.
Notwithstanding anything to the contrary in this Agreement or in any Work Order, in no event shall Customer share any Lead(s) with, transmit any Lead(s) to, or otherwise make any Lead(s) available to any person or entity other than Customer and those of Customer’s officers, directors, employees, contractors, franchisees, and representatives who use such Lead(s) solely for the Purpose and solely with respect to senior care products and services provided by the Customer itself. For the avoidance of doubt, and without limiting the generality of the immediately foregoing sentence, other than to Customer’s franchisees, in no event shall Customer (i) share any Lead(s) with, transmit any Lead(s) to, or otherwise make any Lead(s) available to any subsidiary or affiliate of Customer and/or (ii) use any Lead(s) to provide senior care product or service information provided by any subsidiary or affiliate of Customer or by any other person or entity.
9. LIMITATIONS ON DAMAGES.
TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CARING WILL NOT BE LIABLE TO CUSTOMER FOR ANY PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND CARING’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER WILL BE LIMITED TO THE AGGREGATE DOLLAR VALUE OF FEES PAID TO CARING BY CUSTOMER PURSUANT TO THE TERMS OF THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Amendments. The provisions of this Agreement may not be amended, supplemented, waived or changed unless they are modified in writing, and signed by the party as to whom enforcement of any such amendment, supplement, waiver or modification is sought and making specific reference to this Agreement.
- Insurance Coverage. Customer represents, warrants and covenants that it maintains, and at all times during the Term shall maintain, a comprehensive general liability insurance policy (with coverage amounts customary for Customer’s industry), insuring against liability for, among other things, data cyber and security breaches (including, without limitation, such data, cyber and security breaches contemplated under Section 7 of this Agreement).
- Community Reviews. Customer acknowledges that any reviews posted on Caring’s websites regarding Customer’s communities shall be governed solely by Caring’s review policies, procedures and guidelines found at http://www.caring.com/about/review_guidelines, and that such reviews may not always be positive.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Signatures to this Agreement transmitted by electronic mail in .pdf form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
- Assignment. Neither party shall assign, sublicense or otherwise transfer (voluntarily, by operation or law or otherwise) this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other Party, except that either party may assign this Agreement upon the sale of all or substantially all of its assets or stock, or in connection with an entity restructure, without the written consent of the other Party, except where such transfer is to a competitor of the non-assigning Party.
- Publicity. Neither party will make any public statement, announcement or press release regarding this Agreement without the prior written consent of the other; provided, however, that neither party will be required to obtain the consent of the other to make brief, factual references regarding Customer obtaining Leads from Caring. Customer grants to Caring a limited, non-exclusive license to display Customer’s company names, logos, trademarks or service marks (“Authorized Trademarks”) in connection with the generation of Leads pursuant to this Agreement and each Work Order. Caring acknowledges and agrees that it will not acquire any ownership interest in the Authorized Trademarks by virtue of the license granted herein.
- Force Majeure. Except for the obligation to pay money, a Party’s non-performance will be excused if performance is rendered impossible by strike, fire, flood, state of war (declared or undeclared), earthquake, governmental acts or orders, natural or manmade disaster, or any other reason where failure to perform is wholly beyond the control and not caused by the negligence of the nonperforming Party; provided that such nonperformance will be cause for termination of this Agreement by the other Party if the nonperformance continues for more than thirty (30) days.
- Governing Law; Jurisdiction. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York. Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of record in New York City, New York. Each Party consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court. Service of any court paper may be effected on such Party by mail, as provided in this Agreement, or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
- Severability. If any provision of this Agreement or any other agreement entered into pursuant hereto is contrary to, prohibited by or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given full force and effect so far as possible. If any provision of this Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision shall have the meaning that renders it valid and enforceable.
- Binding Effect; No Third Parties. All terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties and their respective legal representatives, successors and permitted assigns, whether so expressed or not. Unless expressly stated herein to the contrary, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties and their respective legal representatives, successors and permitted assigns. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to either party, nor shall any provision give any third persons any right of subrogation or action over or against either party.
- Notices. Any notice under this Agreement shall be deemed to be received: (i) if by hand delivery, on the day delivered; (ii) if by delivery service (e.g., Federal Express), on the date delivered; (iii) if by email, on the next business day following the date sent; or (iv) if by mail, on the third business day following the mailing of any such notice, postage paid, to the address set forth above. All notices will be sent to the addresses set forth on the cover page, with a copy to email@example.com.
- Entire Agreement. This Agreement and each Work Order constitute the complete and agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications and understandings (both written and oral) regarding such subject matter.