The
Client and Lead Answer, Inc., an Illinois Corporation (the "Company")
(collectively the "Parties"), hereby expressly agree that this Purchase
Order and Sales Agreement is subject to the following Terms and
Conditions:
1.
The Client
agrees that the Client is purchasing marketing information in
the field of real estate financing, insurance or debt reduction
(the "Leads") from the Company. By definition a “lead” is merely
a marketing device to identify potential parties who may be in
the market for services to be offered by a client. Because the
Company is merely providing leads, the Company will receive the
purchase price of all leads provided regardless of whether the
Client conducts any sales as a result of the Leads.
2.
The Client and
the Company agree that the purchase price paid for each Lead by
the Client shall not be construed to be a "fee," "kick-back,"
"commission," or "referral fee" of any nature. Additionally, the
Company represents that it shall not pay or receive any benefit,
other than the purchase price paid by the Client, as
compensation for the Leads pursuant to any agreement or
understanding, oral or otherwise. It is further understood that
any “filters” and related criteria used for data base purposes,
and stated on any Order Form or Purchase Order (including the
Description of Leads Sold) will not modify or amend this
contract by allowing any additional express or implied
warranties regarding leads provided herein.
3.
The delivery
date of Leads shall be within two to five (2–5) business days
from receipt of payment and collection of the signed Purchase
Order and Sales Agreement. The Company shall not be liable for
any delays in delivery caused by factors beyond its control,
including, without limitation, labor disputes, fire,
earthquakes, accidents, floods, acts of God, shipping and/or
transportation.
4.
The Client has
no right to return the Leads purchased, and the Company shall
not accept any unused or returned Leads. The sole and exclusive
recourse for any claimed defective leads come under the
"Replacement Leads" as described in paragraph #5 and #6 below
and which is to be applied at the sole and absolute judgment of
Company.
5.
The Company may
replace any Lead provided to the Client that falls within any of
the following qualifying categories (the "Replacement Lead"):
(a) the Lead has duplicate data sets for the same consumer and
with respect to the same credit product; (b) the Lead is
incomplete and does not permit the Client to make contact with
the consumer, either because the Lead contains an incorrect
telephone number, email address, or otherwise; (c) the Lead was
entered by a consumer lacking legal capacity to make a contract
(e.g., a minor, a person of diminished mental capacity, etc.);
or (d) the Lead provided does not contain all of the specific
Lead criteria specified in the Agreement. However, the Client
will not be entitled to request a refund for incorrect data
entered by consumers concerning income, assets, debts, or other
information necessary to the underwriting and/or processing of a
credit request. The Replacement Lead will be provided as soon as
the Company acquires a Lead satisfying the Client's requisite
criteria. If the Replacement Lead thereafter falls within any of
the aforementioned categories, the Client will receive a
replacement Lead in its place. Notwithstanding the foregoing, if
the Company determines with reasonable diligence that the
Client's claim for a replacement is false or misleading, the
Company reserves the right to not honor the replacement request
and/or terminate this Agreement.
6.
To obtain a
Replacement Lead the Client must have first attempted to contact
the consumer described in the Lead within 24 hours following the
Client's receipt of the Lead from the Company. For a Replacement
Lead or a refund, or regarding any billing related issue, the
Client must first return to the Company the invalid data record
of the Lead within 5 working days of its receipt accompanied by
a written explanation as to why each returned Lead qualifies for
a replacement.
7.
Once the Lead
has been delivered to the Client, all risks of loss shall pass
to the Client.
8.
Any and all
disputes or controversies between the Client and the Company
related to this Agreement, which are not resolved by mutual
agreement, shall be resolved by arbitration in Cook County,
Illinois; provided, however, (i) the parties shall be entitled
to pursue limited discovery of Civil Procedure and (ii) the
arbitration hearing shall commence no later than 120 calendar
days after the arbitrator(s) is/are appointed. Unless specified
otherwise herein, arbitration under this section shall be the
exclusive means of resolving any and all disputes or
controversies arising out of this Agreement.
9.
In the event
that a dispute arises between the Parties related to this
Agreement, the prevailing party to such dispute shall be
entitled to recover from the non-prevailing party all costs and
fees incurred in connection with resolving such dispute
including reasonable attorneys' fees incurred prior to
litigation being commenced as well as all attorney’s fees
incurred during arbitration or other litigation proceedings.
10.
Any notice
required or permitted under this Agreement shall be by certified
mail to the addresses contained in this Agreement. If either
party changes his or her addresses, that party shall provide
written notice to the other of the address. Notice shall be
considered received 5 days after it is mailed.
11.
The Agreement
shall be construed, interpreted and enforced according to the
laws of the State of Illinois.
12.
This Agreement
shall not be valid until the acceptance by the Company. Unless
accepted by the Company within Forty Eight hours (48) any
Purchase Order and Sales Agreement may be voided. The Company
may withdraw from this Agreement at any time before services are
rendered. Client may cancel this agreement within three calendar
days of the original date of this order form and required to
provide written notice to the other party in advance. Refunds
will be permitted within the cancellation period and not
thereafter.
13.
This Agreement
embodies the entire agreement of the parties. No understanding
or agreement, verbal or otherwise, exists between the parties,
except as expressly set forth in this Agreement.
14.
In the event
that any provision of this Agreement is held to be invalid, the
same shall not affect in any respect whatsoever the validity of
the remainder of this Agreement.
15.
If at any time,
the Client is in default as to the payment owed to the Company
for a period of 5 days, the Client shall pay an additional fee
to the Company at the rate of 1.5 % of the unpaid amount per
each month.
16.
The Agreement
may not be assigned by the Client either voluntarily or by
operation of law. Any attempted assignment shall be void.
17.
The Company
shall not be liable for any consequential damages, incidental or
otherwise. The Company's liability to the Client, if any,
connected with this Agreement, including, without limitation, to
breach of contract, shall in no event exceed the amount of
payment received by the Company from the Client, minus costs of
Leads procured and/or provided by the Company.
18.
No
modifications, variations or changes to this Agreement shall be
binding upon the Parties unless mutually agreed to in writing.
19.
The Client
shall indemnify the Company for any and all losses, damages or
liabilities resulting from the Client's failure to adhere to
industry standards and any applicable canons of ethics in the
origination, processing or funding of mortgage loans, insurance
transactions or debt assistance. The indemnification by the
Client shall not be limited to willful acts, bad faith or gross
negligence.
20.
EXCEPT AS
EXPRESSLY PROVIDED HEREIN, THE COMPANY SPECIFICALLY DISCLAIMS
ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING
THE LEADS SOLD TO THE CLIENT, INCLUDING ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
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