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Technology and Data Terms and Conditions

Terms & Conditions

THIS LeadingResponse Technology and Data Agreement (this “Technology Agreement”) incorporates the Sales Order(s) entered into by and between the Parties (collectively, the “Sales Orders,” and together with this Technology Agreement, the “Agreement”). Client and LeadingResponse are each referred to herein individually as a “Party” and collectively as the “Parties”. To the extent that anything in or associated with this Technology Agreement is in conflict or inconsistent with a Sales Order, this Technology Agreement shall take precedence unless otherwise stated to the contrary herein.

The Agreement governs Client’s use of and access to LeadingResponse’s proprietary systems and/or other proprietary LeadingResponse-provided software platforms, interfaces and networks, including, but not limited to, the HUB (collectively, “LeadingResponse Technology”).  If Client is entering into this Technology Agreement or a Sales Order on behalf of a third-party entity, Client represents and warrants that it has full authority to bind such entity and its respective affiliates to the Agreement and, in such case, the term “Client” shall refer to Client, as well as the applicable third-party entity and its affiliates. The Agreement, its contents, the LeadingResponse Technology and related systems and services shall be considered LeadingResponse Confidential Information (as defined below).

Terms

In consideration of the covenants and agreements contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties agree as follows:

  1. Term and Termination

(a)  Term.  The Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with Section 1(b) or as otherwise expressly permitted by the Agreement, shall continue for the duration of any then-active Sales Order.

(b)  Termination.  Unless a different termination provision applies to a then-active Sales Order, Client may terminate this Technology Agreement and all applicable Sales Orders without cause at any time upon thirty (30) days’ prior written notice to LeadingResponse.  Unless a different termination provision applies to a then-active Sales Order, LeadingResponse may terminate the Agreement and all applicable Sales Orders: (i) at any time without cause upon thirty (30) days’ prior written notice; or (ii) immediately upon written notice of a material breach of the Agreement.  Upon any termination or expiration of the Agreement all rights of use and access shall also terminate, subject to Section 18.  For purposes of the Agreement, all termination notices must be sent in accordance with Section 15, which the Parties agree and acknowledge shall be legally sufficient for all purposes.

(c) Return of Client Content.  Other than where LeadingResponse terminates the Agreement for Client’s uncured breach, within thirty (30) days after the notice date of termination, the Client Content (as defined in Section 8) will be made available to Client through the LeadingResponse Technology for final download.  After such thirty (30) day period, LeadingResponse shall have no obligation to maintain or provide any Client Content and shall thereafter, unless legally prohibited, delete all of Client’s data and Client Content stored in the LeadingResponse Technology or that is otherwise in LeadingResponse’s possession or control.

  1. License Grants

(a) LeadingResponse’s License Grant.

(i) LeadingResponse grants to Client a limited, revocable, non-transferable and non-sublicensable license to use and access the LeadingResponse Technology during the Term of the Agreement only, solely to: (A) manage certain consumer leads generated by LeadingResponse and sold to Client pursuant to one (1) or more Sales Orders (“Leads”); provided, however, that LeadingResponse shall retain the right to re-sell any and all Leads to any third-party that is not an attorney, law firm and/or attorney referral service; financial advisor, estate planner, insurance agent, etc. For the avoidance of doubt, LeadingResponse will not re-sell data in a manner that competes with Client’s business  (B) manage Leads purchased from Leading Response and/or imported by Client (“Client Uploaded Leads”); (C) manage third-party generated leads; (D) utilize certain Client-available settings within the LeadingResponse Technology (user interfaces, presentation formats, etc.); and (E) operate interfaces to third-party applications permitted for use with the LeadingResponse Technology by LeadingResponse, in writing in each instance (e.g., exporting to a CMS).

(ii) Client shall not: (A) permit any third-party to access or use the LeadingResponse Technology except as permitted herein or in a Sales Order; (B) reproduce in any form or incorporate into any information retrieval system, electronic or mechanical, any portion of the LeadingResponse Technology; (C) copy, emulate, clone, rent, lease, sell, transfer, modify, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code associated with, the LeadingResponse Technology and/or any portion thereof; (D) use any device, software or routine to interfere or attempt to interfere with the proper working of the LeadingResponse Technology; (E) itself create, generate, author, initiate or develop any technology, system, design, model, formula, methodology, process, business plan, venture, offering and/or documentation reasonably similar to any aspect of the LeadingResponse Technology, or any derivative work thereof; or (F) contract with or otherwise induce any third party to create, generate, author, initiate or develop any system, design, model, formula, process, business plan, venture, offering and/or documentation reasonably similar to any aspect of the LeadingResponse Technology, or any derivative works of same.

(b) Client’s License Grant.

(i) Client grants to LeadingResponse the right to use and view all Client Uploaded Leads and other Client entries into the LeadingResponse Technology for purposes of helping Client optimize the full functionality of the LeadingResponse Technology and to permit LeadingResponse to increase the functionality and competitiveness of its LeadingResponse Technology offering generally.  Such rights shall include without limitation, the right to view, individually and in the aggregate, LeadingResponse provided Leads, Client Uploaded Leads, third-party generated lead data entered by or imported by Client into the LeadingResponse Technology and certain related performance metrics.  LeadingResponse shall have the unfettered right to share any such analytical and statistical data with its affiliates and third-parties (that are under duties of non-disclosure), on a redacted, anonymous basis, wherein no personally identifiable information or Client-law firm-identifiable information is shared.  Such rights are reserved to permit among other things, LeadingResponse’s viewing of the LeadingResponse provided Leads, Client Uploaded Leads and third-party generated leads, as well as associated statistics, in order to compare ultimate lead to client retention measures and to induce new clients to use the LeadingResponse Technology, based upon the proven success metrics that LeadingResponse has developed and will continue to develop during the Term.

(ii) Client also grants LeadingResponse a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its LeadingResponse Technology and related services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Client’s users and Client’s Administrative User (as defined below), relating to the operation of the LeadingResponse Technology and related services.

  1. Provision and Use of LeadingResponse Technology Under the License Grant

The License Grant in Section 2, above, includes:

(a) Provision of the LeadingResponse Technology for Up to Thirty (30) Users. LeadingResponse shall make thirty (30) user subscriptions of the LeadingResponse Technology available to Client pursuant to this Technology Agreement under the applicable Sales Order. User subscriptions are for employees of Client designated by Client as users (“Users”) and cannot be shared or used by more than one (1) User; provided, however, that User subscriptions may be reassigned to new Users replacing former Users who no longer require ongoing use of the LeadingResponse Technology.

(b) Administrative User. Client’s LeadingResponse Technology User subscriptions include one “Administrative User” subscription. The Administrative User subscription may be used solely to administer the LeadingResponse Technology and associated services internally by Client.  It may not be accessed or used to enter, view or modify Leads, opportunities, products, forecasts, cases, solutions or sales campaigns.

(c) Violation of Administrative User Restrictions.  Client understands that the limitations set forth in Section 3(b), are contractual in nature (i.e., the Administrative User functionality is not limited as a technical matter in the LeadingResponse Technology).  Client therefore agrees to strictly monitor Client’s Users’ use of, and access to, the LEADINGRESPONSE TECHNOLOGY and enforce all conditions, obligations and restrictions set forth herein.  LeadingResponse may audit Client’s use of LeadingResponse Technology and associated User subscriptions at any time through the LeadingResponse Technology, or otherwise.  Any violation, misappropriation or unauthorized access to or use of any User subscription shall be considered a material breach of the Agreement, and LeadingResponse may terminate the Agreement for cause or, alternatively, LeadingResponse may, in its sole discretion, implement any additional LeadingResponse Technology terms, conditions, restrictions and/or fee to address such access or use violation.

(d) LeadingResponse Websites. Client’s LeadingResponse Technology User subscriptions are subject to all applicable Sales Orders (and any addenda attached thereto), and any other policies and/or guidelines as made available to Client by LeadingResponse including, but not limited to, as posted by LeadingResponse on the LeadingResponse Website from time-to-time.  As used in the Agreement, the “LeadingResponse Website” refers collectively to all LeadingResponse owned, licensed, leased, operated or controlled websites.

(e) Other Usage Limitations. LeadingResponse may subject Client’s use of the LeadingResponse Technology to other limitations, such as, limits on disk storage space, and on the number of calls Client is permitted to make against LeadingResponse’s application programming interface.  Any such limitations shall be specified in the LeadingResponse Technology online user guide, as updated by LeadingResponse from time-to-time in its sole discretion.  The LeadingResponse Technology provides real-time information to enable Client’s Administrative User to monitor Client’s compliance with these limitations.

(f) Client’s Responsibilities; Representations and Warranties.

(i) Client represents and warrants that shall: (A) be solely responsible and liable for the acts and omissions of its Users including, without limitation, for ensuring each User’s compliance with the terms and conditions set forth in the Agreement, in their entirety; (B) be solely responsible and liable for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Content and data submitted to or published by Client and/or its Users, employees, agents, representatives and contractors via the LeadingResponse Technology; (C) use commercially reasonable efforts to prevent unauthorized access to or use of the LeadingResponse Technology, including through any User subscription, and notify LeadingResponse promptly of any such unauthorized access and/or use; (D) use the LeadingResponse Technology at all times in accordance with the LeadingResponse Technology user guidelines and all applicable state, federal and local laws, rules and regulations including, but not limited to, the Telephone Consumer Protection Act (“TCPA”), including all implementing rules and regulations, the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq., and those governing the National Do Not Call Registry (“NDNCR”), the CAN-SPAM Act of 2003, as amended, the Federal Trade Commission Guidelines Concerning the Use of Endorsements and Testimonials, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act (including §5 thereof), the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing (collectively, “Applicable Law”); and (E) ensure that the marketing activities engaged in by Client in connection with the Leads, LeadingResponse Technology and/or any Sales Order (“Marketing Activities”), the marketing materials utilized in connection therewith (“Creative”), the Client Content and the products and/or services marketed to the Leads and/or other individuals in connection with the LeadingResponse Technology and/or any Sales Order (“Products”): (I) comply with all Applicable Law; and (II) do not contain any materials that infringe upon or violate any intellectual property rights or any other rights of any nature of any third-party.  Where Client is an attorney and/or law firm that assists any Leads in the preparation, presentation and/or prosecution of claims for benefits before the U.S. Department of Veterans Affairs (“VA”), Client further represents and warrants that Client has been accredited by the VA, and shall at all times maintain such accreditation during any period in which it assists any Leads in the preparation, presentation and/or prosecution of claims for benefits before the VA.

(ii) In connection with Client’s use of the Leads and LeadingResponse Technology including, without limitation, the Marketing Activities, Creative and Products, Client shall not: (A) offer, permit or promote gambling; (B) display, transmit or otherwise make available material that is pornographic, obscene, lewd, indecent, or vulgar; (C) display, transmit or otherwise make available material that is threatening, harassing, libelous, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of another’s privacy or which violates any third-party’s privacy rights; (D) transmit malicious code or malware, or engage in phishing or other fraudulent activity; (E) display or transmit material promoting or providing instructional information about illegal activities, promoting physical harm or injury against any group or individual, or promoting any act of cruelty to animals including, but not limited to, instructions on how to assemble bombs, grenades and other weapons; (F) interfere with or disrupt the integrity or performance of the LeadingResponse Technology or third-party data contained therein; (G) display or transmit any material that creates the impression, in any way, that Client is affiliated with or endorsed by the United States Social Security Administration or any other governmental entity; or (H) attempt to gain unauthorized access to the LeadingResponse Technology or LeadingResponse’s other systems or networks.

  1. Fees

As of the Effective Date, the LeadingResponse Technology is provided to Client at no charge for the number of Users specified in Section 3, above, and for one Administrative User.  LeadingResponse reserves the right to change its pricing policies for access to and use of the LeadingResponse Technology `at any time upon ten (10) days’ prior written notice given in accordance with Section 15.  Client shall pay LeadingResponse the fees as set forth in the applicable Sales Order(s).  Interest will accrue on any past due amounts at the rate equal to the lesser of one percent (1%) per month or the maximum amount permitted by law.  In addition, Client shall be liable to LeadingResponse for all reasonable attorneys’ fees and other costs incurred in collecting such unpaid amounts.  If payment is not made in a timely manner, LeadingResponse may, at its option, suspend a Client’s access to the LeadingResponse Technology and/or immediately terminate the Agreement and any and all then-active Service Orders upon email notice to Client.  Where Leads are disputed by Client as expressly authorized under the Sales Order and/or where Client fails to make payments for Leads in accordance with the payment terms set forth in the applicable Sales Order(s) for any reason, Client shall have no rights in or to such Leads, and the subject Leads shall be deemed “Unaccepted Leads” for purposes of the Agreement.  Unaccepted Leads shall be deemed the Confidential Information (as defined below) of LeadingResponse, subject to any and all restrictions set forth herein.  Without limiting the generality of the confidentiality obligations set forth herein, Client agrees that it: (a) will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Leads to/with any third party; (b) will not use the information contained in the Unaccepted Leads on its own behalf in any manner not expressly authorized by LeadingResponse; (c) will not use the information contained in the Unaccepted Leads to create any interactive on-line, or other derivative product; (d) will not publicly display the information contained in the Unaccepted Leads on the Internet; and (e) will notify LeadingResponse as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Leads and provide reasonable assistance to LeadingResponse in the investigation and prosecution of any such unauthorized use or disclosure.

  1. Exclusion of Warranties

LEADINGRESPONSE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND IT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, UPTIME, AVAILABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LEADINGRESPONSE DOES NOT REPRESENT OR WARRANT THAT CLIENT’S ACCESS TO AND USE OF THE LEADINGRESPONSE TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR THAT CLIENT’S USE OF, OR ACCESS TO, THE LEADINGRESPONSE TECHNOLOGY WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR OR LOSS OF CLIENT’S CONTENT, LEADS OR OTHER DATA.  CLIENT AGREES AND ACKNOWLEDGES THAT THE LEADINGRESPONSE TECHNOLOGY IS SUBJECT TO BUGS, DOWNTIME AND SOURCE CODE REVISION AND CORRECTIONS.

LeadingResponse is not responsible for any malfunction, delay, nonperformance and/or other degradation of performance of the LeadingResponse Technology caused by or resulting from any alteration, modification and/or amendments due to changes and/or specifications requested or implemented by Client.  Client understands that, on occasion, the LeadingResponse Technology may be inaccessible, unavailable or otherwise inoperable for any reason including, but not limited to, the following: (a) equipment and/or software malfunctions; (b) periodic maintenance procedures or repairs; and/or (c) causes beyond LeadingResponse’s control or which are not reasonably foreseeable by LeadingResponse including, but not limited to, interruption or failure of telecommunications or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures.  Client agrees that LeadingResponse has no control over, and shall not be liable for, the availability of the LeadingResponse Technology on a continuous and/or uninterrupted basis.  Further, Client understands and agrees that LeadingResponse’s failure to provide access to the LeadingResponse Technology because of technical difficulties shall not be considered a breach and/or failure to meet its obligations under the Agreement.  LeadingResponse will make reasonable efforts to repair and reinstate the LeadingResponse Technology in the event of a failure, depending on the severity of said failure. If said failure is the result of an action performed by Client or an agent of Client, then Client shall be responsible for paying all costs associated with reinstating and/or repairing the LeadingResponse Technology.

  1. Restrictions on Transfer of Information, Privacy

(a) The Leads provided by LeadingResponse are licensed to Client solely for use in connection with Client’s internal business purposes, including contacting such Leads for the purpose of providing the products and/or services requested by such Leads.  Without limiting the foregoing, Client agrees not to sell, transfer, license, sub-license or otherwise disseminate any information gathered or provided by LeadingResponse (including LeadingResponse provided Leads provided under any Sales Order or other agreement, as applicable) or the LeadingResponse Technology pursuant to the Agreement, except to the limited extent where Client is legally required to do so and provided that Client provides LeadingResponse with prior notice in accordance with Section 15 (to the extent legally permitted, and using commercially reasonable efforts to provide such notice sufficiently in advance to enable LeadingResponse to interpose any legal objection available under applicable law or regulation).

(b) Client agrees that it will not use the LeadingResponse Technology or any LeadingResponse provided Lead data for any unauthorized use.  Client shall not use LeadingResponse’s name in any marketing or other materials without LeadingResponse’s prior written consent, which may be withheld in LeadingResponse’s sole discretion.

(c)        LeadingResponse reserves the right to use Client’s name as part of its advertising campaigns and Client agrees and acknowledges that, from time-to-time, LeadingResponse may request that Client be a reference for LeadingResponse, attesting to its use of and access to the LeadingResponse Technology. Any such statements shall be jointly coordinated and approved, such approval shall not be unreasonably conditioned, withheld, delayed or denied.

  1. LeadingResponse’s Intellectual Property

LeadingResponse shall at all times retain sole and exclusive ownership of, and, as applicable, sole and exclusive rights as a licensee or sub-licensee of, all copyrights, trademarks, trade names, trade dress, patents, software, source code, object code and other intellectual property rights and analytics associated with, in and to the LEADINGRESPONSE TECHNOLOGY (collectively, “IP”).  The Agreement shall not be construed to convey, assign, sell or transfer any IP.  Any such transfer, if at all, shall be conducted under a separate agreement signed by the Parties.  For the avoidance of doubt, all LeadingResponse IP shall be deemed LeadingResponse Confidential Information. LeadingResponse reserves any and all rights not explicitly granted in the Agreement.

All information submitted by Leads is proprietary and exclusively owned by LeadingResponse. Client agrees that LeadingResponse shall retain the sole and exclusive right to use all data derived from the Leads and may share, sell, rent, lease or otherwise provide that personal information to any third-party for any purpose permitted by law, and we may work with other businesses to bring selected retail opportunities to Leads, provided that Client may use and disclose the lead data (other than personally identifiable information) (i.e. any data or information that specifically identifies an individual end user or LeadingResponse or from which an individual end user or LeadingResponse be discovered is removed), for internal business purposes and to disclose such aggregated data for (a) reporting purposes consisting of compilation of aggregated statistics about its services.

  1. Client’s Intellectual Property

Client represents and warrants that none of the Creative, content, materials, designs, text, names, data or other information provided by Client to LeadingResponse, or uploaded to the LeadingResponse Technology, in connection with the Agreement or otherwise, as well as the systems and tools used by Client to access and use the LeadingResponse Technology or LeadingResponse’s other systems (collectively, “Client Content”), infringes upon the intellectual property or other proprietary rights of any third-party, and LeadingResponse shall have no liability for any claims arising out of any such Client Content, including those based on infringement.  LeadingResponse shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards to protect of the security, confidentiality and integrity of the Client Content. LeadingResponse will not: (a) modify Client Content; (b) disclose Client Content to third parties,  except as compelled by law, where necessary in connection with any legal proceeding, as expressly permitted in the Agreement or as otherwise agreed upon between the Parties in writing; or (c) access Client Content except to: (i) make the LeadingResponse Technology and associated services available to Client; (ii) perform permitted analytics and statistical analysis; (iii)  to prevent or address technical problems; or (iv) at Client’s request in connection with customer support matters.

  1. Confidentiality

(a) Definition of Confidential Information. As used herein, “Confidential Information” shall mean all shall information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) that is not generally known to the public relating to the Disclosing Party’s business, products, technology, research or developments.  Confidential Information shall include, by way of example and without limitation, the proposed and any resulting business relationship between the Parties, products, devices, material, samples, demonstration units, services, cost and pricing structures, accounting and business methods, analyses, drawings, reports, computer software (including operating systems, applications and program listings), databases, data, documentation, configurations, algorithms, flow charts, manuals, trade secrets, technology, know-how, formulae, inventions, designs, developments, methods, processes, product customization processes, digital processes and applications and information relating to planning (whether or not patentable or copyrightable and whether or not reduced to practice or fixed in a tangible medium), identities and information regarding a Party’s suppliers, clients and customers and their confidential information, suppliers and supplier lists, together with information obtained or disclosed by inspection of samples, equipment or facilities and all similar and related information in whatever form or medium including, without limitation, information conveyed in writing, by email, orally or visually.  All documents and other information will be considered Confidential Information whether or not marked with any proprietary notice or legend when the disclosure takes place.  Similarly, all information conveyed orally or visually will be considered Confidential Information whether or not designated as proprietary when the disclosure takes place.  Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

(b) Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and the Receiving Party agrees: (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained herein.  Neither Party shall disclose the terms of this Technology Agreement or any Sales Order to any third-party other than its affiliates, their legal counsel and accountants without the other Party’s prior written consent.

(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so; provided, that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted, and using commercially reasonable efforts to provide such notice sufficiently in advance to interpose any legal objection available under applicable law or regulation) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

  1. Client’s Indemnification Obligations

Client shall indemnify, defend and hold harmless LeadingResponse and its affiliates, parents and subsidiaries and each of their respective officers, directors, employees, agents and legal representatives (collectively, the “Indemnified Parties”), from and against any and all claims, costs, damages, losses or expenses, including reasonable attorneys’ fees, incurred by an Indemnified Party for any claims against an Indemnified Party arising from or related to (including allegations, even if proven untrue and incidents where an Indemnified Party is made the subject of a lawsuit, complaint or other action, regardless of merit): (a) the Marketing Activities, Client’s use of the Retainer Agreement functionality, Client Content, Client Uploaded Leads, Written Agreements and/or Products; (b) any violation, or alleged violation, of Applicable Law by Client; (c) any dispute between Client and any Lead or third-party; and/or (d) Client’s breach of any obligation, representation and/or warranty contained in or arising under the Agreement.

  1. LIMITATIONS OF LEADINGRESPONSE’S LIABILITY

IN NO EVENT SHALL LEADINGRESPONSE HAVE ANY LIABILITY TO CLIENT FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT LEADINGRESPONSE OR CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, LEADINGRESPONSE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR LOSS OF CLIENT’S CONTENT OR DATA OR FOR INTERRUPTIONS IN THE LEADINGRESPONSE TECHNOLOGY.  THE MAXIMUM LIABILITY OF LEADINGRESPONSE TO CLIENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT RECEIVED BY LEADINGRESPONSE IN THE PREVIOUS SIX (6) MONTHS WITH RESPECT TO ALL APPLICABLE SERVICE ORDERS, AND IN NO EVENT SHALL LEADINGRESPONSE’S TOTAL LIABILITY EXCEED SUCH AMOUNT.  THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

  1. Entire Agreement; Amendment

This Technology Agreement, together with all Sales Orders, cancels and supersedes any and all prior written and unwritten agreements and/or understandings between the Parties pertaining to the matters covered in the Agreement.  No amendment to the Agreement shall be effective unless reduced to writing and signed by both Parties.

  1. Venue and Choice of Law

(a) The Agreement shall be governed by the laws of the State of Florida (without regard to its rules regarding conflicts of laws).  Exclusive venue for any applicable state or federal court, or arbitration tribunal, shall lie within Hillsborough, FL and such courts shall have personal jurisdiction over the Parties to the Agreement.  Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.  The prevailing Party in any action brought for the enforcement or interpretation of the Agreement shall be entitled to receive, from the losing Party, without limitation, reasonable attorneys’ fees and costs of litigation, in addition to any other relief to which it may be entitled.

(b) The Parties agree that any dispute arising out of or related to the Agreement shall be subject to a statute of limitations of one (1) year after it arises, or be forever time barred, unless such cause of action arises out of Client’s improper disclosure or use of LeadingResponse’s Confidential Information, or the violation of LeadingResponse’s proprietary IP rights, which then shall be governed by the applicable statute of limitations under state or federal law, as the case may be.

  1. Independent Contractors

The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.  Nothing contained in the Agreement shall be construed to: (a) give either Party the power to direct or control the day‑to-day activities of the other; or (b) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.

  1. Headings

Section headings used herein are for convenience only, are not part of the Agreement, and shall not be used in construing the Agreement.

  1. Verification of Compliance

Client agrees that LeadingResponse may use various techniques to verify compliance hereunder, and may contact anyone in its inquiry, including any User, person, corporation or entity using or accessing the LeadingResponse Technology or the LeadingResponse systems underlying the LeadingResponse Technology or otherwise responding to or through the LeadingResponse Technology in any fashion.

  1. Survival of Certain Provisions

Sections 1(c), 2(b), 3(c)-(f), 5-16, 18 and 19 of this Technology Agreement shall survive any termination or expiration of the Agreement.

  1. Severability

If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provisions shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in full force and effect.