INSIDERESPONSE RESERVES THE RIGHT TO MAKE CHANGES TO THIS CALL TRANSFER AGREEMENT (“AGREEMENT”) AT ANY TIME FOR ANY REASON. YOU WILL BE NOTIFIED BY EMAIL IF CHANGES HAVE BEEN MADE. UPON NOTIFICATION OF CHANGES TO THIS CALL TRANSFER AGREEMENT, PLEASE REVIEW THE AGREEMENT IN ITS ENTIRETY. YOU AGREE THAT YOUR CONTINUED USE OF THE SITE AND SERVICES SIGNIFIES YOUR ACCEPTANCE OF THE CHANGES TO THE AGREEMENT. IF YOU DO NOT AGREE WITH THE CHANGES, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICES OR SITE.
1. Call Transfer Services. Where set forth in the applicable Campaign Terms, InsideResponse and its third party marketing partners agree to generate requests ("Phone Call Requests") from Consumers to receive telephone calls from Agent (each such request, a "Call Transfer(s)"). Where a Consumer submits a Phone Call Request to InsideResponse, and is otherwise considered by InsideResponse to be a Valid Call Transfer (as defined below), InsideResponse agrees to promptly provide such Call Transfers to Agent, in the form of a telephone call, via InsideResponse's designated proprietary technological platform (the "InsideResponse Platform").
2. Payment. Upon Agent's acceptance of this Agreement (including the Campaign Terms), Agent will pre-pay InsideResponse by credit card ("Agent Credit Card") the fees set forth in the applicable Campaign Terms ("Prepaid Allotment") for the number of Valid Call Transfers requested by Agent. At any time following the deposit of the applicable Prepaid Allotment, Agent can request a withdrawal of Eligible Funds (defined below) from Agent's account. For purposes of the Agreement, "Eligible Funds" shall mean the Prepaid Allotment and other amounts actually deposited by Agent into Agent's account, less all amounts owed to InsideResponse as payment for Valid Call Transfers. In order to request a withdrawal, Agent must contact Agent's account representative, who is identified on InsideResponse's platform interface. Where Agent has not made a purchase of Valid Call Transfers using the Prepaid Allotment for a period of twelve (12) consecutive months, InsideResponse shall return the remainder of the Eligible Funds to Agent via a credit to the Agent Credit Card account, provided that the Agent Credit Card account remains valid, active and capable of receiving such a credit. ALL DETERMINATIONS WITH RESPECT TO THE AMOUNT OF ELIGIBLE FUNDS WILL BE MADE BY INSIDERESPONSE, IN ITS SOLE AND ABSOLUTE DISCRETION, AND SUCH DETERMINATION SHALL BE FINAL AND BINDING IN ALL RESPECTS.
3. Valid Call Transfers. A "Valid Call Transfer" is an individual person that: (i) is not a fraudulently concocted, created or generated Consumer; and (ii) has submitted a valid Phone Call Request (as defined above) that meets all of Agent's criteria as set forth in the Campaign Terms. Where Agent suspects that a Call Transfer submitted by InsideResponse is not a Valid Call Transfer, Agent must notify InsideResponse within seven (7) business days of receipt of such Call Transfer. If InsideResponse receives such notice from Agent within such time period, the parties agree to investigate the subject Call Transfer and seek to resolve the matter in good faith within ten (10) business days following InsideResponse's receipt of the notice. If the parties acting together in good faith determine that such Call Transfer was a Valid Call Transfer, then no further action shall be taken. If the investigation reveals that the Call Transfer was not a Valid Call Transfer, InsideResponse shall credit Agent's account for the amount of the subject Call Transfer. Where the parties cannot agree on the validity of the Call Transfer, Agent acknowledges and agrees that InsideResponse's good faith determination shall control in all respects. A Call Transfer that is both accepted and paid for by Agent is an "Accepted Call Transfer". A Call Transfer that is not both accepted and paid for by Agent is an "Unaccepted Call Transfer". All Unaccepted Call Transfers shall be deemed the sole and exclusive property of InsideResponse and shall be treated by Agent as the Confidential Information (as defined below) of InsideResponse, subject to all the restrictions and limitations set forth in this Agreement. Agent acknowledges and agrees that it shall have no ownership interest in or right to access (including, without limitation, the right to possess and/or use) the data associated with Unaccepted Call Transfers, and InsideResponse reserves any and all rights in and to the data not otherwise explicitly granted in this Agreement.
4. Ownership. Unless otherwise designated in the Campaign Terms, upon Agent's acceptance of and payment for a Call Transfer (in accordance with the payment terms agreed to by the parties), InsideResponse shall grant to Agent joint ownership of the data associated with such Call Transfer. For the avoidance of doubt, Agent understands, acknowledges and agrees that only at the point at which Agent accepts and pays for the Call Transfer will Agent have joint ownership of the data associated with the deliverable. If Agent is purchasing Call Transfers as part of a Carrier Sponsored Program, the applicable Carrier will also be entitled to joint ownership of all data associated with each Call Transfer. A “Carrier Sponsored Program” is a program whereby a company on behalf of whom Agent sells, markets or promotes products or services (such company, a “Carrier”) will make funds available to Agent in order to pay for all or a portion of the Call Transfers.
5. Unaccepted Call Transfers. Where Agent (i) does not accept a Call Transfer(s), or (ii) attempts to charge back payment for a Call Transfer(s), and/or (iii) where such Call Transfer(s) is later determined not to be a Valid Call Transfer(s), Agent understands, acknowledges and agrees that it shall have no rights in and to such Call Transfer(s), and the subject Call Transfer(s) shall automatically become Unaccepted Call Transfers and be the sole and exclusive property of InsideResponse. Agent agrees that all rights not included in this license are expressly reserved by InsideResponse. Without limiting the generality of the Confidentiality obligations set forth in this Agreement, Agent agrees that it: (a) will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Call Transfers to or with any third party; (b) will not use the information contained in the Unaccepted Call Transfers on its own behalf or for its own benefit in any manner unless expressly authorized in writing by InsideResponse; (c) will not use the information contained in the Unaccepted Deliverables to create any interactive on-line, CD-ROM or other derivative products; (d) will not publicly display the information contained in the Unaccepted Deliverables on the Internet; (e) will notify InsideResponse as soon as it knows or has reason to of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Deliverables, and (f) provide reasonable assistance to InsideResponse in the investigation and prosecution of any such unauthorized use or disclosure, use or access.
6. Confidential Information. As used herein, "Confidential Information" shall mean: (a) either party's proprietary information, including but not limited to any plans, practices, strategies, forecasts and analyses or other information regarding a party's operations, technology, software, algorithms, business, finances, marketing, industry know-how, trade secrets, accounts, customers; (b) information marked or designated by either party as confidential; (c) information otherwise disclosed by either party in a manner consistent with its confidential nature; (d) the terms and conditions of the Agreement, including pricing information; (e) as to InsideResponse, the Unaccepted Deliverables, any and all information contained in the Unaccepted Call Transfers, and all aspects of, and processes associated with, the InsideResponse Platform; and (f) both party's information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of services pursuant to the Agreement, one party may disclose Confidential Information ("Disclosing Party") to the other party ("Receiving Party"). Confidential Information shall not be used or disclosed, except in accordance with applicable law or the terms of this Agreement. Receiving Party agrees to refrain from disclosing such Confidential Information to any third party, unless (a) disclosure is necessary and permitted in connection with the Receiving Party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties, (b) disclosure is required by applicable law; provided, however, that the Receiving Party shall promptly give the Disclosing Party advance notice thereof so as to afford the Disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information, or (c) any disclosure is made with the prior written consent of the Disclosing Party. Receiving party acknowledges that Disclosing Party does not grant any license to keep or use the Confidential Information and that Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. Receiving Party acknowledges that the Confidential Information is provided "as is" and “as available” and Disclosing Party makes no warranties or guarantees as to its accuracy or completeness or fitness for a particular purpose. Notwithstanding anything contained herein to the contrary, these confidentiality obligations do not apply where the Receiving Party can demonstrate with clear and objective evidence that the information: (i) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the Receiving Party; (iii) was rightfully and lawfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (iv) is independently developed by the Receiving Party without reliance upon or reference to the Disclosing Party's Confidential Information. Upon termination of this Agreement, or otherwise on demand by Disclosing Party, Receiving Party agrees that it will promptly return the Confidential Information to Disclosing party or destroy it, as determined in Disclosing Party's sole discretion, un-copied and undistributed. Destruction of any Confidential Information shall be certified in writing within five (5) days of such request. Receiving Party acknowledges and agrees that monetary damages for breach or threatened breach of this provision are not easily capable of determination and may not be adequate relief, and that the Disclosing Party shall further be entitled to seek injunctive relief without the requirement to post bond, in addition to seeking any other legal and equitable remedies. This Section 7 shall survive any expiration or termination of the Agreement and remain in full force and effect for a period of three (3) years thereafter or until the subject Confidential Information is no longer protectable under Kansas law, whichever is longer. Notwithstanding anything to the contrary in this Agreement, if Agent is purchasing Call Transfers as part of a Carrier Sponsored Program, InsideResponse shall be permitted to disclose the Call Transfers, any reports related thereto, Agent’s usage and amounts spent under this Agreement, and any other relevant information related to this Agreement or Agent’s relationship with InsideResponse, as may be requested by the Carrier from time to time.
7. Calls Not Answered. An InsideResponse Representative will collect consumer information from persons interested in your product or service ("Consumer Lead Data") and email that Consumer Lead Data to you in the event our Representative is unable to reach you for a live call transfer (either the Representative does not receive an answer or receives voicemail when s/he attempts to make the live transfer to you).
The InsideResponse Representative will first speak to the consumer, gather the necessary/requested Consumer Lead Data and attempt to make a live call transfer to you. If the Representative is unable to reach you, the Representative will obtain verbal consent from the consumer to allow us to email the Consumer Lead Data to you so that you can outbound dial the consumer when you are available or at another designated time specified by the consumer. Upon receipt of verbal permission, the Consumer Lead Data will then be emailed to you and you will then outbound dial the consumer as requested by the consumer and/or in accordance with your own schedule. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE INSIDERESPONSE REPRESENTATIVE IS ONLY OBTAINING CONSENT FOR YOU TO CONTACT THE CONSUMER BY OUTBOUND DIALING. INSIDERESPONSE DOES NOT REPRESENT, WARRANT, PROMISE OR GUARANTEE, AND SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, PROMISES AND GUARANTEES, THAT THE CONSUMER WILL CONSENT TO SPEAK WITH YOU WHEN YOU CONNECT WITH THE CONSUMER VIA THE OUTBOUND CALL. YOU ASSUME ANY AND ALL RISK ASSOCIATED WITH HAVING AN INSIDERESPONSE REPRESENTATIVE TAKE AND ENTER THE CONSUMER LEAD DATA, EMAILING YOU SUCH DATA, YOU OUTBOUND DIALING THE CONSUMER BASED ON THAT DATA, AND YOU SPEAKING WITH THE CONSUMER VIA THE OUTBOUND DIALING.
You understand that you will be charged for the emailing of the Consumer Lead Data at the time at which the InsideResponse Representative is unable to reach you for the live call transfer. For the avoidance of doubt, you will be charged at the time that the InsideResponse Representative receives your voicemail or no answer when the transfer is attempted. The price for the transfer of the Consumer Lead Data will be the same as what you agreed to pay for a live call transfer. In other words, the pricing will be the same as whatever your bid is then-currently set for you to receive a live call transfer. As applicable, you will pay all charges in connection with the Program in accordance with this Agreement. In the event of a dispute over the applicable price for the Consumer Lead Data, InsideResponse's decision shall control and be final and binding in all respects.
You understand, acknowledge and agree that you will follow all applicable federal, state and local laws, rules and regulations governing your use of the Consumer Lead Data and your outbound dialing of the consumer, including but not limited to the Telephone Consumer Protection Act, the Telemarketing Sales Rule, state telemarketing laws, as amended from time to time, as well as all state and federal insurance licensing and sales requirements.
8. Warranties. Agent represents and warrants to InsideResponse that: (a) Agent has full power and authority to enter into the Agreement; (b) the use of Call Transfers provided to Agent will not violate any law, statute rule or other governmental regulation; (c) Agent has obtained, and shall maintain at all times during the term of the Agreement, all necessary permits and licenses required by all applicable state and federal governmental bodies in order to perform and/or offer its or any third party's products and/or services in any and all jurisdictions applicable to Agent; (d) Agent shall only offer its insurance-related products and/or services to the Accepted Call Transfers ("Agent Services"); and (e) Agent's marketing attempts, as well as Agent Services, will at all times fully comply with all applicable state and federal laws, rules and/or regulations including, but not limited to, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the Telemarketing Sale Rule, 16 CFR 310 et seq., and those state and federal laws, rules and regulations governing the NDNCR, telemarketing and deceptive trade practices, and all state and federal laws, rules and regulations promulgated under any of the foregoing (collectively, "Applicable Laws"). InsideResponse represents and warrants to Agent that: (i) InsideResponse has full power and authority to enter into the Agreement; (ii) the execution, delivery and performance by InsideResponse of its obligations under this Agreement will not violate any law, statute or other governmental regulation by which it is bound; and (iii) InsideResponse's Call Transfer generation activities will at all times fully comply with all Applicable Laws.
9. Audit. Agent agrees that InsideResponse, or any designee of InsideResponse that is legally bound by obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement and for three (3) months thereafter to reasonably examine, inspect, audit and review (collectively, "Audit") Agent's books, records and any source documents used in the preparation thereof, as same relate to unauthorized use of the Unaccepted Call Transfers generated hereunder. Such Audit shall be conducted during normal business hours and upon seven (7) days' prior written notice to Agent. Such Audit shall be at InsideResponse's sole cost and expense and be limited to those books and records that InsideResponse reasonably believes relate to unauthorized use of the Unaccepted Call Transfers. Where Agent has used the Unaccepted Call Transfers or any information contained therein or associated therewith, Agent shall immediately remit payment for such Unaccepted Call Transfers, plus applicable interest, in accordance with the payment terms set forth herein, and the Purchase shall reimburse InsideResponse for the full costs and expenses associated with conducting the Audit.
A. By Agent. Agent agrees to indemnify, defend and hold harmless InsideResponse, its parents, affiliates and subsidiaries, and each of their respective members, owners, officers, investors, partners, directors, shareholders, employees and authorized representatives and agents, from and against any and all liability, claim, loss, lien, damage, demand, judgment, verdict, proceeding, action, lawsuit, investigation, inquiry, cost and/or expense of any kind or nature (including reasonable attorneys' fees and litigation costs) (collectively, "Claim(s)"") asserted by any third party due to, arising from, or in connection with: (a) any breach by Agent of the Agreement, including, without limitation, any provision, obligation, representation or warranty contained herein; (b) any Claim related to the Agent's Services and/or products; and (c) any Claim related to Agent's marketing activities; and (d) any Claim related to the use of the Call Transfers; and (e) any claim related to Agent's federal and/or state certification(s), license(s) and/or permission(s) to market and sell its products and/or services.
B. By InsideResponse. InsideResponse agrees to indemnify, defend and hold harmless Agent from and against any and all Claims asserted by any third party due to, arising from, or in connection with any breach by InsideResponse of the Agreement.
C. Procedure. If any Claim is or will be brought against either Party (the "Indemnified Party") for which indemnity may be sought from the other Party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim; provided, however, that the Indemnifying Party will not agree to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party, which will not be unreasonably withheld or delayed.
11. Term; Termination.
A. Term. The initial term of the Agreement shall be one (1) year and shall commence on the date indicated in the Campaign Terms ("Initial Term"). Thereafter, the Agreement shall automatically renew on an annual basis for one (1) year terms (each, a "Renewal Term"), unless otherwise terminated pursuant to the provisions set forth hereinbelow (the Initial Term and any subsequent Renewal Terms shall be collectively referred to as the "Term"). Notwithstanding anything herein to the contrary, either party may terminate the Agreement at any time for any reason upon seventy-two (72) hours' prior written notice to the other party.
B. Termination. In addition to the above, this Agreement may be terminated at any time by either Party, effective immediately upon written notice, if a Party: (i) files a voluntary petition in bankruptcy or makes an assignment for the benefit of creditors; or (ii) breaches any of the material terms of this Agreement if such material breach is not remedied within five (5) business days from the receipt of written notice of such material breach; or (iii) as to InsideResponse, in its sole discretion, if Agent fails to pay all invoices in accordance with the terms of the applicable Campaign Term(s) or Agent's credit is or becomes unsatisfactory, for whatever reason, to InsideResponse, or if InsideResponse knows of or reasonably suspects any unethical, illegal or otherwise inappropriate conduct by Agent that may subject InsideResponse to legal or civil liability, inquiry or investigation. Upon termination or expiration of this Agreement for any reason, Agent will pay InsideResponse all amounts then due and owing as of the termination date, with such payment to be made during the next billing cycle. Payments that are past due shall accrue interest at the lesser of one and one-half percent (1.5%) per month, or the maximum rate permitted by law.
12. DISCLAIMER OF WARRANTIES. THE SERVICES AND CALL TRANSFERS PROVIDED BY INSIDERESPONSE UNDER THE AGREEMENT ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, INSIDERESPONSE DISCLAIMS ANY AND ALL WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, PERFORMANCE, LEVEL OF SUCCESS WITH RESPECT TO ANY CAMPAIGN, AND ANY OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INSIDERESPONSE DOES NOT WARRANTY, PROMISE, REPRESENT OR GUARANTEE THE VOLUME OR FREQUENCY OF CALL TRANSFERS OR RESPONSE RATES. INSIDERESPONSE'S SERVICES, INCLUDING BUT NOT LIMITED TO THE CALL TRANSFERS, MAY CONTAIN BUGS, TECHNICAL OR OPERATIONAL PROBLEMS AND/OR OTHER LIMITATIONS ADVERSELY IMPACTING INSIDERESPONSE'S ABILITY TO MAKE CALL TRANSFERS, PURCHASER'S ABILITY TO ACCEPT CALL TRANSFERS AND/OR THE QUALITY AND/OR USEFULNESS OF THE CALL TRANSFERS. INSIDERESPONSE DOES NOT WARRANTY, PROMISE, REPRESENT OR GUARANTEE THAT PURCHASER'S USE OF THE CALL TRANSFERS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PURCHASER WILL BE ABLE TO USE THE CALL TRANSFERS. INSIDERESPONSE EXPRESSLY DISCLAIMS RESPONSIBILITY FOR THE OPERATION OF AND/OR DAMAGE TO PURCHASER'S AND/OR ANY THIRD-PARTY(S)' DATA SECURITY SYSTEMS AND/OR PRIVACY PROTECTION PROCEDURES ARISING FROM ANY CALL TRANSFERS OR UNACCEPTED CALL TRANSFERS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, ASSOCIATED WITH SAME.
IF PURCHASER HAS REQUESTED THAT A INSIDERESPONSE REPRESENTATIVE CHANGE ON ITS BEHALF A CALL BID PRICE UNDER ANY PROGRAM OFFERED BY INSIDERESPONSE, ANY CALL FILTER CRITERIA AND/OR ANY OTHER ELEMENT RELATING TO PURCHASER'S ACCOUNT OR YOUR PARTICIPATION IN A INSIDERESPONSE PROGRAM (COLLECTIVELY, "MODIFICATION(S)") (WHETHER ELECTRONICALLY, VERBALLY, IN WRITING OR OTHERWISE), PURCHASER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT INSIDERESPONSE MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES OR PROMISES THAT THE REPRESENTATIVE WILL ACCURATELY RECORD THE MODIFICATION(S) AND/OR ENTER SUCH MODIFICATION(S) INTO THE PLATFORM PROPERLY AND/OR ENTER THE MODIFICATION(S) INTO THE PLATFORM IN A TIMELY MANNER. PURCHASER ASSUMES ANY AND ALL RISK ASSOCIATED WITH HAVING A INSIDERESPONSE MAKE ANY MODIFICATION TO PURCHASER'S ACCOUNT.
INSIDERESPONSE MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES, INDUCEMENTS OR PROMISES THAT THE REPRESENTATIVE WILL ACCURATELY RECORD THE CONSUMER LEAD DATA, EMAIL PURCHASER THE CONSUMER LEAD DATA IN A TIMELY OR APPROPRIATE MANNER, ENSURE THAT ALL NECESSARY CONSUMER LEAD DATA WILL BE PROPERLY TRANSFERRED TO PURCHASER, AND/OR ENSURE THAT PROPER CONSENT HAS BEEN OBTAINED FOR PURCHASER TO OUTBOUND CALL THE CONSUMER BASED ON THE CONSUMER LEAD DATA. PURCHASER ASSUMES ANY AND ALL RISK ASSOCIATED WITH HAVING INSIDERESPONSE COLLECT AND SEND CONSUMER LEAD DATA, INCLUDING COMPLYING WITH ALL REQUIREMENTS IMPOSED BY THE TELEPHONE CONSUMER PROTECTION ACT, THE TELEMARKETING SALES RULE, AND ALL RELATED FEDERAL AND STATE LAWS, RULES AND REGULATIONS GOVERNING TELEMARKETING AND/OR INSURANCE SALES.
PURCHASER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT IS WITHIN INSIDERESPONSE'S SOLE DISCRETION AS TO HOW IT DIRECTS ITS CALL TRANSFERS AND CONSUMER LEAD DATA AND WHETHER OR NOT TO ACCEPT A BID PLACED BY PURCHASER FOR A CALL TRANSFER OR CONSUMER LEAD DATA. PURCHASER'S PLACEMENT OF BIDS FOR CALL TRANSFERS OR CONSUMER LEAD DATA DOES NOT IN ANY WAY BIND INSIDERESPONSE TO ACCEPT SUCH BIDS. PURCHASER FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT A BID TO PURCHASE A CALL TRANSFER OR CONSUMER LEAD DATA DOES NOT CONSTITUTE, OR BIND INSIDERESPONSE TO, A FIRM SALE PRICE.
13. LIMITATION OF LIABILITY. IN NO EVENT SHALL INSIDERESPONSE, ITS PARENTS, SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR OFFICERS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, PARTNERS, DIRECTORS, OWNERS, INVESTORS, SHAREHOLDERS, REPRESENTATIVES OR AGENTS BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, LOST BUSINESS OR INFORMATION, IMPAIRMENT OF ASSETS, OR LOST GOOD WILL OR REPUTATION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY CAMPAIGN, HOWSOEVER CAUSED, WHETHER BASED IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, INSIDERESPONSE'S TOTAL AGGREGATE LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO INSIDERESPONSE BY PURCHASER PURSUANT TO THE AGREEMENT. INSIDERESPONSE DISCLAIMS ANY AND ALL LIABILITY FOR, AND SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR, THE ACTIONS OR INACTIONS OF ITS SUB-LICENSEES.
14. Non-Circumvention; Non-solicitation.
A. Non-circumvention. Agent recognizes that InsideResponse has proprietary relationships with the affiliates, advertisers and other third parties that purchase Call Transfers ("Clients") from and/or market Call Transfers ("Marketers" and together with the Clients, "Partners") to InsideResponse. During the term of this Agreement and for a period of six (6) months following termination or expiration hereof, Agent agrees not to circumvent InsideResponse's relationships with such Partners, or otherwise offer, make available, provide, obtain, purchase, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Agent hereunder for any Partner that is known, or should reasonably be known, by Agent to have such a relationship with InsideResponse. Notwithstanding the foregoing, to the extent that Agent can establish by reasonable objective evidence that any such Partners already obtained such services from, or provided such services to, Agent prior to the Effective Date of this Agreement, then Agent shall not be prohibited from continuing such relationship(s). Agent agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that InsideResponse shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Agent in the amount equal to one hundred percent (100%) of the fees paid by Agent to, or received by Agent from, the subject Partner for the prior twelve (12) month period; and/or (c) any and all other remedies available to InsideResponse at law or in equity.
B. Non-solicitation. During the Term of this Agreement and for a period of twelve (12) months immediately following the date of termination hereof, Agent will not, directly or indirectly, for itself or for the benefit of any third-party, hire or solicit for employment or services, any employee, consultant or independent contractor of InsideResponse.
15. Force Majeure. Other than for payment obligations, neither party will be liable, or be considered to be in breach of the Agreement, on account of such party's delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party prompt notice of such Force Majeure Event and any resulting delay or inability to perform, and will use commercially reasonable efforts to minimize the impact of any such event. For the avoidance of doubt, this section does not relieve Agent of any of its payment obligations.
16. Relationship of the Parties. The relationship of InsideResponse and Agent established by this Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint-venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party's behalf. Each party shall be solely responsible for the actions or inactions of its respective employees, agents, affiliates and representatives.
17. Jurisdiction; Venue. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Kansas, without giving effect to its conflicts of law principles. Each party irrevocably consents to the exclusive jurisdiction of the state and federal courts of Johnson County, Kansas, in connection with any action arising under the Agreement. The parties agree that service by a major overnight courier (such as FedEx or UPS) shall constitute valid and effective service of process in any action arising under the Agreement.
18. Cumulative Rights; Waiver. Except as otherwise specified herein, 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 a 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. No delay or failure by either party to exercise any right, power or option under this Agreement, and no partial or single exercise of that right, power or option, shall constitute a waiver of that or any other right, power or option, unless otherwise expressly provided herein. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. No waiver of any right shall be effective against a party unless in writing and executed by the waiving party. A waiver of default shall not be a waiver of any other or subsequent default.
19. Entire Agreement; Modifications. This Agreement, together with any applicable Campaign Terms, contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior written, electronic or oral agreements and understandings between the Parties. No modification, change or amendment of this Agreement or any Campaign Terms shall be valid, effective or legally enforceable against InsideResponse unless in writing and executed by a duly authorized representatives of InsideResponse. INSIDERESPONSE RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME FOR ANY REASON. YOU WILL BE NOTIFIED BY EMAIL IF CHANGES HAVE BEEN MADE. UPON NOTIFICATION OF CHANGES TO THIS AGREEMENT, PLEASE REVIEW THE AGREEMENT IN IT ENTIRETY. YOU AGREE THAT YOUR CONTINUED USE OF THE SITE AND SERVICES SIGNIFIES YOUR ACCEPTANCE OF THE CHANGES TO THE TERMS. IF YOU DO NOT AGREE WITH THE CHANGES, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICES OR SITE.
20. Severability. If any provision contained in the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real original intention of the parties, and the remaining provisions of the Agreement will remain valid, binding and in full force and effect. Any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
21. Assignment. Agent shall not, without the prior written consent of InsideResponse, assign its rights or delegate its duties under the Agreement; provided, however, that either party may, in the event of a merger, acquisition, joint venture or sale of all or substantially all of such party's assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. Subject to the foregoing, the provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
22. Electronic Signatures. Agent acknowledges and agrees that by clicking on the Submit button, or taking such other action as may be designated by InsideResponse as a means of accepting the Agreement, Agent is submitting a legally binding electronic signature and is entering into a legally binding contract. Agent acknowledges that Agent's electronic submission constitutes Agent's agreement and intent to be bound by the Agreement. PURSUANT TO ANY AND ALL APPLICABLE STATUTES, REGULATIONS, RULES, ORDINANCES OR OTHER LAWS INCLUDING, WITHOUT LIMITATION, THE UNITED STATES ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, P.L. 106-229 (THE "E-SIGN ACT") AND/OR OTHER SIMILAR STATUTES, PURCHASER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY INSIDERESPONSE. Further, Agent hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
23. Survival. All provisions of this Agreement that by their nature and/or content are intended to survive completion, termination or expiration hereof shall so survive.
24. No Third Party Rights. Except as may be expressly provided herein, nothing in this Agreement shall be enforceable by any party other than the parties hereto, and no third party beneficiary rights are conferred on any third party.
25. Section Headings. The titles to the paragraphs in this Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of said covenants or provisions set forth therein.
26. Counterparts. This Agreement and any Campaign Term(s) may be executed (electronically or otherwise) in any number of counterparts and all of which shall together constitute one and the same instrument.
27. No Reliance; Interpretation. Agent acknowledges and agrees that it (i) has had the opportunity to seek the advice of legal counsel of its choice, (ii) has read and understands all of the terms and conditions of this Agreement, and (iii) acknowledges that it has not relied on any representation by InsideResponse in executing this Agreement, except as may be expressly stated herein. The parties stipulate that the rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.