This
Lead Generation Agreement is effective as of 01 Aug 2024.
Acceptance
of this Agreement Your access to, use of, or participation in this Program (as defined below) is subject to this Lead Generation Agreement (“Agreement”). This Agreement constitutes a legally binding contract between the company you represent and InstaAirRepair(“Company”). All references to “you” or “your,” as applicable, mean the contractor who accesses, uses, and/or participates in the Program in any manner. If you use the Program on behalf of a company, you represent and warrant that you have the authority to bind that company, your acceptance of the Agreement will be deemed an acceptance by that company, and “you” or “your” shall herein refer to that company. Company reserves the right to immediately terminate this Agreement or your participation in the Program for any reason or no reason at any time.
Modifications to this Agreement Company reserves the right, in its sole discretion and at any time, to change, modify, or otherwise amend this Agreement and any other documents incorporated herein by reference. Company will post the amended Agreement on the Platform (as defined below). It is your responsibility to review the Agreement for any changes. Your continued use of the Program will signify your assent to, and acceptance of, the amended Agreement. If you do not agree to abide by this or any amended Agreement, you are prohibited from participating in the Program.
Description of the Program The Lead Generation Program (the “Program”) is intended to provide a quick and easy way for consumers visiting Company’s website or platforms (“Customers”) to find a contractor (“Contractor”) who is interested in accepting an emergency repair or replacement project (“Project”).
Mechanism of the Program a. A customer will submit his/her location and services issue(s) (the “Lead”)through the Company's website or platform (the “Platform”). b. The Lead will be shared via the Platform with a group of eligible Contractors that perform the type of services described in the Lead in the area in which the Customer is located. c. The Contractor who responds first to the Lead and commits to arrive at the Customer’s location within 90 minutes will win the bid. d. If the Customer agrees to hire you upon your arrival at his/her location, it will be your responsibility to enter into a service contract with the Customer (“Service Contract”) and collect your service fee and trip charge from the Customer directly.
Payment a. If you do not arrive within 90 minutes of the bidding time, we will immediately charge your credit card on file for using the Platform, instead of billing the Customer. b. Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature (“Taxes”), including, for example, sales, use or withholding taxes, assessable by any jurisdiction. c. If you fail to pay any Fees due in accordance with this Section 5, in addition to our other remedies, we may (a) suspend access to and use of the Platform by you pending payment of such overdue amounts, or (b) immediately terminate the Agreement for breach. d. If you believe that we have invoiced you incorrectly, you must submit any invoice dispute by the _______ of each month in order to receive an adjustment or credit, otherwise, your right to dispute the amounts invoiced shall be waived. In the event of a disputed invoice, only that portion so disputed in good faith may be withheld from payment and you must timely pay the undisputed portion. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You are responsible for any and all costs of collection incurred by Company in collecting such late or past-due payments, including reasonable attorney’s fees and litigation costs.
Representation and Warranty You represent, warrant, covenant and agree that, at the time you respond to a Lead: a. You possess all applicable state and local licensing, registration, permits, insurance, bonding, or other trade requirements to provide service for the Project described in the Lead; b. You have not received any significant complaints from Customers; c. You are willing and able to complete the work described in the Lead to the Customer’s satisfaction at the Customer’s location; d. You will abide by all applicable federal, state, or local laws, rules, and regulations, including but not limited to the Telephone Consumer Protection Act; e. You are in good standing with Company, meaning that you have not been excluded for any reason from category or keyword searches, and are not delinquent in any of your obligations (financial or otherwise) relating to this Agreement or any other agreement with Company; f. You have full power, authority, and legal capacity to execute and deliver this Agreement; g. None of your trademarks, service marks, logo or other marks used in the advertisements infringe or violate any other person’s or entity’s intellectual property rights.
Provision of Services You agree to, at all times, perform the services obtained through the Program in a good and workmanlike manner, consistent with the best practices and highest level of service available in the relevant industry, and shall be solely and independently responsible for such performance. You shall commence the performance of the services for a Customer within the time frame agreed to between you and the Customer. Notwithstanding the foregoing, all services performed for a Customer shall be performed pursuant to Service Contract. All of the services performed for Customers in connection with the Program shall be billed to the applicable Customer in accordance with Service Contract.
Company Trademarks You shall not use, directly or indirectly, any of Company’s trademarks, trade names, images, service marks, logos or other intellectual property for any purpose without the express written consent of Company. No license or other rights in or to any Company intellectual property or logo are granted to Contractor under or implied by this Agreement.
Indemnification by Contractor You hereby agree to indemnify, defend and hold harmless Company and its Affiliates and their respective directors, managers, officers, stockholders, employees, agents, and insurers (“Company Indemnitees”) from and against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and attorneys’ fees) and/or judgments incurred or suffered by any of the Company Indemnitees that result from or arise out of, directly or indirectly, (i) your breach of any terms of this Agreement; (ii) your sale of any products to Customers or provision of or failure to perform services for any Customers or any other persons; (iii) your failure or refusal to honor any quote made to a Customer; (iv) your breach of any terms of Service Contract with Customer; (v) any negligence or willful misconduct by you; (vi) any allegation or finding that Company is acting as a general contractor or other professional contractor (e.g., construction, plumbing, electrical, etc.); or (vii) any non-compliance or alleged non-compliance by you with any such laws. “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Limitation of Liability TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR SPECIAL LOSSES, WHETHER BASED UPON A CLAIM FOR BREACH OF WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE CLAIM RELATING TO THIS AGREEMENT, THE RELEVANT GOODS OR SERVICES OR PERFORMANCE HEREUNDER. COMPANY'S ENTIRE, CUMULATIVE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR SERVICES SHALL BE LIMITED TO FEES PAID BY THE CONTRACTOR UNDER THIS AGREEMENT FOR THE LEAD GIVING RISE TO THE LIABILITY IN THE THREE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
Relationship of Parties You are a nonexclusive independent contractor to Company. Your employees and/or agents are not employees of Company and are not eligible to participate in any benefits or privileges given or extended by Company, or by operation of law, to its employees. You have no authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of Company. Subject to the terms of this Agreement, you shall be solely responsible for determining the manner and method by which you shall perform the Services, and the setting and ultimate collection of its compensation that you charge a Customer for the services, subject to the terms and conditions of your Service Contract with the Customer pursuant to which such services are performed. COMPANY IS NOT A GENERAL CONTRACTOR, PROVIDER OF SERVICES, OR MERCHANT OF RECORD AND IS ACTING SOLELY IN ITS CAPACITY AS A SYSTEM ADMINISTRATOR FOR YOU AND THE CUSTOMER FOR THE PURPOSE OF ENABLING SUPERIOR SERVICE AND FOR MARKETING AND ADVERTISING THE SERVICES ON YOUR BEHALF. By entering into this Agreement, you agree that you are solely responsible for compliance with all applicable laws, rules, regulations, ordinances and orders (collectively, “Laws”) of federal, state and local governmental entities relating to the performance of the services, including, without limitation, any and all Laws relating to professional licensure and permitting, construction permitting, and bonding.
Confidentiality You shall hold any information disclosed to, or uncovered, overheard or otherwise obtained, by You before or after the date of this Agreement (the “Confidential Information”), in absolute and strict confidence. Confidential Information includes but not limited to: (i) Lead; (ii) work flow processes, source code, programming information; (iii) client lists and other client data, supplier lists, pricing information and fee schedules; (iv) employment, management and consulting agreements and other organizational information; (v) trade secrets and other proprietary business and management methods; (vi) competitive analysis and strategies; (vii) any other technical, marketing, operational, economic, business, management, or financial knowledge, information or data of any nature whatsoever relating to the business of Insal, (x) any extracts therefrom, and (xi) the existence and terms of this Agreement. Confidential Information shall also include any information that is provided to Client by third parties and is subject to obligations of confidentiality. Confidential Information includes not only written information but also information transferred orally, visually, electronically or by other means. The term Confidential Information shall not include any information that: (i) has become part of the public domain through no breach of this Agreement or no fault of yours; or (ii) was lawfully in your possession, without an obligation of confidentiality, prior to receipt hereunder, as evidenced by your business records; (iii) is obtained by you from a third person who is not in violation of any contractual, legal, or fiduciary obligation to disclosing party by disclosing the Confidential Information; or (iv) is independently developed by you without the use of Confidential Information as evidenced by your business records. You agree that such Confidential Information will be used for no purpose other than for performing the Services under this Agreement. You agree that it shall implement the same commercial measures that you use to protect your own highly sensitive confidential information and shall not disclose it to anyone except to a limited group of its employees, officers, directors and outside consultants who have a need to know such information for the sole purpose of performing the Services hereunder (“Representatives”), provided that prior to such disclosure, each person to whom such Confidential Information is disclosed must be advised of its confidential nature and of the terms of this Agreement and must agree in writing to abide by such terms. You shall be responsible for its Representative’s breach of this Agreement. Upon termination of this Agreement or upon written request from Company to you at any time, (i) you shall promptly return to Company all of Company’s Confidential Information which is in tangible form, including any copies which you may have made, and you will destroy or delete all abstracts, summaries thereof of references thereto in its documents, and certify to Company that you have done so, and (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, any of their respective businesses, or in the business of anyone else, whether or not in competition with Company, or for any other purpose whatsoever. The confidentiality obligations set forth in this Agreement shall remain in full force and effect despite the return or destruction of such Confidential Information. In the event that you become legally compelled to disclose any of Company’s Confidential Information, you will provide Company with prompt notice so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that Company is unable to obtain such protective order or other appropriate remedies, you (a) will furnish only that portion of Company’s Confidential Information which it is advised by a written opinion of your counsel is legally required, and (b) will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
Breach of Agreement and Liquidated Damages a. You understand and agree that, because damages are often difficult to calculate if it becomes necessary for Company to pursue legal action to enforce the terms and conditions of this Agreement, you will be liable to pay us the following amounts as liquidated damages, which you accept as reasonable estimates of Company’s damages for the specified breaches of this Agreement. b. If you display, copy, duplicate, reproduce, sell, re-sell or exploit for any purpose any of the content we posted in the Platform, you agree to pay One Thousand Dollars ($1,000) for each item of content displayed, copied, duplicated, reproduced, sold, resold or exploited in violation of this Agreement. c. If you use computer programming routines that are intended to aggregate records or content from the Platform or otherwise damage, interfere with, disrupt, impair, disable or otherwise overburden our Platform, you agree to pay One Thousand Dollars ($1,000) for each review or record that is aggregated, disrupted, damaged or otherwise affected by you. d. Except as set forth in the foregoing subsections (a) through (c), inclusive, you agree to pay the actual damages suffered by Company, including, but not limited to attorneys’ fees and court costs, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of this Agreement, we reserve the right to seek the remedy of specific performance of any term contained herein, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement, or any combination thereof.
Notice You agree that Company may communicate any notices to you under this Agreement, through electronic mail, regular mail or posting the notices on the Platform. All notices to Company shall be provided by either sending a letter, first class certified mail, to _______________, __________________ Attn: _______________. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.
Governing Law, Jurisdiction and Statute of Limitations for Claims The Program, the Platform, this Agreement, and your relationship with Company shall be governed by the laws of the State of Texas, without regard to its conflicts of laws provisions. You agree and consent to the exclusive jurisdiction of the state or federal courts located in Dallas County, Texas and waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court, except that Company may elect, in its sole discretion, to litigate the action in the county or state where any breach by you occurred or where you can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action you bring arising out or related to your use of the Program, the Platform, this Agreement, or your relationship with Company shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
No Assignment You may not assign or otherwise transfer this Agreement or any of its rights and/or obligations relating to this Agreement without the prior written consent of Company.
Waiver No course of dealing, course of performance, or failure of either party to strictly enforce any provision in the body of this Agreement is to be construed as a waiver thereof.
Interpretation; Construction If any provision of this Agreement is held illegal, invalid or unenforceable under the Law, such provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision were not a part of this Agreement. All headings in this Agreement are for convenience and for reference only, are not part of this Agreement, and no construction or inference will be derived from the headings. The word “including” does not exclude items not listed. Unless the context otherwise requires, singular includes the plural and plural the singular, and masculine, feminine and neuter genders are interchangeable. Unless expressly provided otherwise, the word “day” refers to a calendar day.
Entire Agreement This Agreement governs your use of the Program and constitutes the entire agreement between you and Company with respect to the Program. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and Company regarding the subject matter contained in this Agreement. Additional terms and conditions may exist between you and third parties, including but not limited to, any Service Contract you enter into with a Customer. You represent and warrant that those third-party agreements (including any such Service Contract) do not interfere with your obligations and duties to Company under this Agreement.
Provisions Remaining in Effect Termination of this Agreement for any reason will not affect any continuing obligation or liability of the Agreement which would otherwise survive termination of this Agreement, including without limitation, your obligations pursuant to the Warranties, Indemnification, and Confidentiality sections of this Agreement.
Binding Effect This Agreement and the rights and obligations created hereunder shall be binding upon and inure solely to the benefit of you and Company and our respective successors and permitted assigns, and no other person shall acquire or have any right under or by virtue of this Agreement.
Force Majeure Except for the payment obligations, neither party shall be liable for any costs or damages resulting from its inability to perform any of its obligations under this Agreement due to acts of God, the elements, strikes, actions or decrees of governmental bodies or any like causes beyond the reasonable control of the affected party, and could not have been prevented or avoided by the exercise of all due diligence. (“Force Majeure Event”). A Force Majeure Event shall not constitute a breach of this Agreement.
Right to Injunction; Right to Costs and Attorneys Fees. You recognize and agree that the covenants regarding Confidential Information are reasonably necessary to protect Company’s legitimate interests. You acknowledge that violation of such covenants would cause irreparable harm to Company not adequately compensated by monetary damages. You agree that Company may, in addition to other remedies, enjoin your violation of the covenants contained in this Agreement. You agree to pay Company the costs and reasonable attorneys’ fees and other expenses of litigation incurred by Company in enforcing any or all of the provisions of this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE PLATFORM OR PARTICIPATE IN THE PROGRAM. YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.
