BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS HOME CARE SERVICE AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (THE “ORDER FORM”, AND TOGETHER WITH THIS SERVICE AGREEMENT, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY SERVICE (AS DEFINED BELOW).
This Agreement, by and between Customer and A Place for Mom, Inc. (“APFM”), is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”).
APFM provides home care agencies with information on seniors or their families in search of home care services (the “Home Care Service”). This Agreement governs the Home Care Service and Customer’s use of APFM’s proprietary software-as-a-service platform (the “SAAS Platform”, and together with the Home Care Service, the “APFM Service”), which provides APFM’s customers with information related to such caregivers and seniors who have been referred by APFM to the applicable APFM customer, including AI-generated communications summaries and analytics, as well as benchmarking and comparative analytics. Such benchmarking and comparative analytics may include comparisons of Customer’s engagement and performance metrics against other agencies in aggregated and/or de-identified form. APFM reserves the right to change or modify portions of this Agreement at any time. If APFM does so, it will post the changes on this page and will indicate at the top of this page the date this Service Agreement was last revised. APFM will also notify Customer, either through an email notification or through other reasonable means. Any such changes will become effective upon Customer’s acceptance of the same (which acceptance may be granted by clicking a box indicating acceptance of the new Service Agreement or by delivery of an email notification of such changes to Customer’s email address set forth in the Order Form (or such other email address that has been subsequently identified by Customer within Customer’s account within the APFM Service) without an objection to such changes issued by Customer to APFM in writing within ten (10) business days of such delivery). Each of APFM and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.
APFM will use commercially reasonable efforts to make the APFM Service available to Customer. Subject to the terms and conditions of this Agreement, APFM hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicensable right to access and use the APFM Service during the Term (as defined below), solely for Customer’s internal business purposes.
Customer will not use the APFM Service for any purpose other than the purposes expressly set forth herein. Customer may not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the APFM Service; (b) modify, translate, or create derivative works based on the APFM Service, Leads (as defined below) or Service Data (as defined below); (c) use the APFM Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; (e) use the APFM Service, Leads or Service Data in any way that violates applicable laws; (f) use the APFM Service, Leads or Service Data in a way that violates any third party’s rights; or (g) use Service Data to develop or train artificial intelligence models. Customer will not: (a) “sell” or “share” (each as defined in Privacy Law) Leads or Service Data; (b) retain, use, or disclose Leads or Service Data for any purpose other than as permitted under this Agreement; (c) retain, use, or disclose Leads or Service Data other than in the context of the direct relationship with APFM. In the event that APFM notifies Customer of a request by an individual to opt out of the processing of such individual’s personal data, Customer will take reasonable and appropriate steps to comply with such request in accordance with Privacy Laws. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the APFM Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like. Customer will also be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords. Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer). Customer will inform APFM immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the APFM Service. Without limiting any other rights or remedies set forth herein or available pursuant to law, APFM may immediately suspend Customer’s access to the APFM Service if Customer is in breach of any term or condition of this Agreement. “Privacy Laws” means any applicable federal, state, or local law, regulation, or rule governing the processing, protection, or privacy of personal information or protected health information (PHI), including but not limited to the California Consumer Privacy Act (CCPA), the Washington My Health My Data Act (WMHMDA), the Health Insurance Portability and Accountability Act (HIPAA), and any similar or successor legislation.
Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to APFM with respect to the APFM Service or Evaluation Services (as defined below). APFM will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to APFM a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback. Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).
From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like. Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms. Unless otherwise stated, any Evaluation Services trial period will expire ninety (90) days from the trial start date. APFM may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. APFM will have no liability, directly or indirectly, for any harm or damage arising out of or in connection with any Evaluation Services.
APFM will provide to Customer information on seniors or their families in search of home care services (“Home Care Leads”) or individuals seeking employment with in-home care service providers (“Recruitment Leads,” and together with Home Care Leads, each instance a “Lead”). Based on a Lead’s stated needs and preferences, APFM, in its discretion, will share Lead information with one or more home care agencies, which are then responsible to contact that Lead regarding their offerings and compatibility.
Customer acknowledges that any Lead is provided on a nonexclusive basis and that APFM may have other service providers in Customer’s area. Customer is authorized to use the Leads and Service Data solely for its internal marketing purposes of proposing only Customer’s home care services to such Leads. Customer will not use the Leads or Service Data for purposes of marketing or offering products or services other than those about which the Lead has specifically inquired. As between the Parties, Leads and Service Data are the Confidential Information of APFM.
Except in certain circumstances related to Programs of All-Inclusive Care for the Elderly (PACE), APFM will not knowingly send to Customer any Leads that are Prohibited Consumers. A “Prohibited Consumer” is one whose source of payment for home care services will be provided, in whole or in relevant part, by Medicare, Medicaid, or any similar federal or state funding source where such funding source prohibits the referral or fee arrangement contemplated by this Agreement. For clarity, a consumer will not be considered a Prohibited Consumer solely because they are a Medicare or Medicaid beneficiary if the home care services being sought will be paid for on a private-pay basis. Consumers participating in any federal or state program that funds or subsidizes home care services will be considered Prohibited Consumers if and to the extent such program prohibits the referral arrangement contemplated by this Agreement. Customer shall not owe or pay APFM any fees relating to any Prohibited Consumer and may request a return of such fees by submitting a Return Request through the APFM Service in accordance with Section 2.9.
Customer agrees that it has an independent responsibility to verify whether a consumer is a Prohibited Consumer. Customer will not accept any Leads deemed to be a Prohibited Consumer. Customer is solely responsible for evaluating, accepting (or declining, as appropriate), and caring for all Leads, in conformance with any laws or regulations applicable to Customer generally and Customer’s services in particular.
Customer agrees to charge a Lead the same rate as all other consumers who receive similar services, including being eligible for all discounts or concessions. Customer is prohibited from charging or seeking to recover in any other manner any portion of the fees owed under this Agreement from any Lead. All fees or pricing information for the APFM Service are the Confidential Information of APFM.
Where APFM makes available functionality within the APFM Service for Customer to request a return, credit, fee reversal, or restoration of any Lead Credit with respect to a Lead (each, a “Return Request”), Customer must submit all Return Requests directly through the APFM Service portal. Customer must submit any Return Request no later than forty-five (45) days after the applicable Lead is delivered. Any Return Request submitted outside of the forty-five (45) day window will be automatically denied. APFM will not submit Return Requests on behalf of Customer. APFM may approve or deny Return Requests based on the return reasons, criteria, and information required within the APFM Service, and if approved, APFM will apply the applicable credit, fee reversal, refund, and/or restoration of Lead Credit (as applicable) through the APFM Service. Additional information regarding valid return reasons, eligibility criteria, and supporting documentation requirements may be made available in APFM’s Resource Center (the “Return Policy”). APFM may update the Return Policy from time to time, and Customer agrees that such Return Policy will govern the evaluation of Return Requests. APFM will evaluate Return Requests based on information available through APFM’s intake process, internal systems, and any documentation provided by Customer, and APFM will not be required to approve a Return Request based solely on Customer’s assertion without supporting information that can reasonably be validated by APFM.
Customer may pause, suspend, or cancel delivery of Leads/referrals either (a) through the functionality made available within the APFM Service portal or (b) by submitting a request through APFM’s designated support channels (including email to the address designated by APFM for such requests, which may include accountreviews@aplaceformom.com). Requests submitted through the APFM Service portal will take effect according to the functionality available in the portal at the time of the request. Requests submitted outside of the portal must provide at least seven (7) business days’ prior notice, and APFM will use commercially reasonable efforts to implement such request within that turnaround time. Until the pause or cancellation becomes effective in the APFM Service, Leads may continue to be delivered and will be charged (or deducted from any prepaid credits) in accordance with this Agreement. A pause or cancellation of referrals does not terminate this Agreement, and termination remains governed by Section 5.1.
Customer acknowledges and agrees that, as between the Parties, APFM retains all right, title and interest in and to (a) the APFM Service and all associated intellectual property rights and (b) the Leads and any information or data collected, derived, or generated in connection with the APFM Service, including without limitation call recordings, call metadata, transcripts, messages, Customer interactions with Leads, usage and performance metrics, and any summaries, analytics or other content generated by, and displayed to Customer through, the APFM Service (collectively, “Service Data”). APFM grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the APFM Service and Service Data. Customer will acquire no right, title, or interest in and to the APFM Service or Service Data other than the limited licensed rights expressly granted under this Agreement.
“Aggregated Data” means data and information derived from Service Data or otherwise collected in connection with the APFM Service that has been aggregated and/or de-identified such that it does not identify Customer, any other customer, any Lead, or any individual. Customer acknowledges and agrees that APFM may (a) collect, store, process, and combine Service Data with other data in one or more centralized repositories or “data lakes,” (b) create Aggregated Data, and (c) use Service Data and Aggregated Data for benchmarking, comparative analytics, internal analytics, product improvement, and to develop and provide features, reports, and insights. APFM may make available benchmarking or comparative analytics results to Customer and other customers only in aggregated and/or de-identified form and without identifying Customer or any other customer. As between the Parties, APFM retains all right, title, and interest in and to Aggregated Data and any analyses, reports, or other materials derived therefrom. For clarity, Customer will not receive, and has no right to access, any other customer’s Service Data.
In exchange for use of the APFM Service and the rights granted pursuant to this Agreement, Customer will pay to APFM the fees set forth in the Order Form or the SAAS Platform, as applicable (the “Fees”), in accordance with the terms and conditions set forth herein and therein. Customer will be charged any applicable Fees per Lead delivered, unless Customer selects a prepaid pricing program described in this Agreement, the SAAS Platform or an applicable Order Form. For pay-per-Lead pricing, Fees accrue and are due upon receipt of each Lead. By selecting a pre-paid Lead bundle, Customer agrees to purchase the stated number of Leads at the stated cost per Lead on the SAAS Platform or the applicable Order Form. By selecting a Prepaid Lead Basket Program, Customer agrees to the applicable Basket Size, Basket Price, and other terms described in Section 4.5. Customer hereby authorizes APFM to charge the method of payment provided for any amounts due. Payment obligations are non-cancelable and any Fees paid are non-refundable, except as expressly provided in this Agreement (including Section 2.6 and 2.9) or as required by law. APFM may amend the Fees from time to time upon thirty (30) days’ prior notice.
In the event that Customer’s method of payment is declined, APFM will immediately stop providing the APFM Service until a new, valid method of payment is received and any outstanding balance is paid. If Customer’s method of payment is declined twice in any six-month period, APFM may require Customer to pre-pay in an amount equal to the cost of one Lead multiplied by ten. If such prepayment is required, any fees for future Leads will be credited against the prepayment until such prepayment is exhausted. Once the prepayment is exhausted, fees shall be handled according to Section 4.1.
Fees that have not been paid within 30 days will accrue late charges at the lesser of 1.5% per month or the maximum rate permitted by law. Customer shall also be responsible for any costs of collection, including attorneys’ fees, incurred by APFM, in enforcing its rights under this Agreement.
All amounts payable by Customer to APFM hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of APFM. Customer will not withhold any Taxes from any amounts due APFM.
APFM may make available to Customer a prepaid “basket” program for Leads (the “Prepaid Lead Basket Program”). If Customer elects the Prepaid Lead Basket Program through the SAAS Platform or an applicable Order Form:
(a) Basket Size; Basket Price; Basket Period. Customer will purchase a prepaid Basket of Leads in the size specified in the SAAS Platform or applicable Order Form (the “Basket Size”) at the predetermined price specified in the SAAS Platform or applicable Order Form (the “Basket Price”) for each applicable billing cycle (each, a “Basket Period”).
(b) Lead Credits; Delivered Leads. Upon payment of the Basket Price, Customer will have a prepaid balance of Lead credits equal to the Basket Size (“Lead Credits”). Each Lead delivered to Customer will decrement Lead Credits by one. For purposes of the Prepaid Lead Basket Program, a Lead is considered “delivered” when it is made available to Customer through the APFM Service (or otherwise transmitted to Customer) and will be counted regardless of whether Customer contacts the Lead or converts the Lead.
(c) Top-Up. During the Term, at the end of each Basket Period, APFM will charge Customer a “Top-Up” amount equal to the cost of the number of Leads delivered during that Basket Period (i.e., the number of Lead Credits used) to restore Customer’s Lead Credit balance back to the Basket Size for the next Basket Period. The Top-Up amount will be calculated using the per-Lead price or other pricing specified for that Basket in the SAAS Platform or applicable Order Form. Following the effective date of termination, APFM will not charge any additional Top-Up amounts for future Basket Periods.
(d) Exhaustion; Additional Leads. If Customer’s Lead Credits are exhausted, APFM may pause delivery of additional Leads unless and until Customer purchases additional Lead Credits or otherwise agrees (through the SAAS Platform or an Order Form) to receive additional Leads, in which case such additional Leads will be charged at the then-current applicable rate.
(e) No Refunds; No Transfers. Basket Price, Top-Up amounts, and any other amounts paid under the Prepaid Lead Basket Program are non-refundable (except as expressly provided in this Agreement, including Section 2.6, or as required by law). Lead Credits may not be assigned, transferred, or applied to any other customer account or third party and may not be used for the benefit of any third party.
(f) Cancellation; Remaining Lead Credits. If Customer cancels or this Agreement is terminated for any reason, Customer will remain responsible for any unpaid amounts due for Leads delivered prior to the effective date of termination. Any remaining Lead Credits will not be refunded; instead, subject to availability of Leads and APFM’s standard allocation practices, APFM will continue to deliver Leads to Customer until such remaining Lead Credits are exhausted, and Customer may continue to access the APFM Service solely as necessary to receive and manage such Leads during that period.
Subject to earlier termination as set forth in this Agreement, this Agreement will commence on the Effective Date and continue until terminated as set forth herein (the “Term”). Customer may terminate this agreement with thirty days’ notice to accountreviews@aplaceformom.com. APFM may terminate this agreement with thirty days’ notice to the email address on file with APFM. In addition, either Party may terminate this Agreement immediately upon written notice to the other Party if such other Party materially breaches any material provision of this Agreement and does not cure such material breach within fifteen days after receiving written notice thereof. For clarity, requests to pause or cancel delivery of Leads/referrals without terminating this Agreement are governed by Section 2.10.
In the event that this Agreement expires or is terminated for any reason, all rights granted to Customer with respect to the APFM Service will immediately terminate, and Customer will (a) cease use of the APFM Service; and (b) pay to APFM all amounts due and owing under this Agreement (to the extent not previously paid). Notwithstanding the foregoing, if Customer has purchased prepaid Leads (including a pre-paid Lead bundle) or has remaining Lead Credits under the Prepaid Lead Basket Program, then (i) APFM may continue to deliver Leads to Customer until such prepaid Leads or Lead Credits are exhausted (subject to availability of Leads and APFM’s standard allocation practices), and (ii) Customer may continue to access the APFM Service solely as necessary to receive and manage such Leads during that period. In addition, upon expiration or termination of this Agreement (and, if applicable, after completion of any post-termination delivery of prepaid Leads or Lead Credits permitted under this Agreement), at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.
Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.3 (Feedback), 3 (Ownership; Reservation of Rights), 4 (Fees; Payment Terms), 5 (Term; Termination), 6 (Confidentiality), 7.3 (Disclaimers), 7.4 (No Professional Advice), 8 (Limitations of Liability), 9 (Indemnification) and 11 (General) will survive.
“Confidential Information” means, subject to the exceptions set forth in Section 6.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 6.2 hereof.
Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser; or (d) is Aggregated Data (as defined in Section 3.2) or other aggregated and/or de-identified information that does not identify the Discloser, any customer, any Lead, or any individual.
The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
Customer represents and warrants on behalf of itself and each agency within its organization that: (a) it is appropriately licensed by and in good standing with the state in which it is located; (b) it will notify APFM, in writing, within three (3) days of Customer’s receipt of any material licensing changes, including any revocations, suspensions, conditions, or other limitations imposed; (c) it is not a home care, home aide, or home health registry; (d) it will comply with any applicable federal, state, or local laws, regulations, orders or judgments, including, without limitation (i) all Privacy Laws, (ii) laws governing the use of data for training an artificial intelligence system or model (“AI Training”), and (iii) all laws related to healthcare fraud and abuse; (e) none of the monies it charges or collects are consolidated with other supportive services provided by a federal health care program; and (f) it acknowledges and understands that APFM may record or transcribe calls between Customer and Leads or other parties, including through the use of artificial intelligence or automated technologies, and Customer further acknowledges that APFM may use such recordings, transcripts, and related data to generate Service Data, including analytics, benchmarking, and comparative insights (including in aggregated and/or de-identified form); and (g) it will not use any Lead or Service Data for purposes of determining a person’s eligibility for insurance, credit, employment or otherwise in any manner that violates the Fair Credit Reporting Act; (h) it will maintain the confidentiality of all Leads and Service Data and will not “sell” or “share” (as such terms are defined under Privacy Laws) any Leads or Service Data to any third party unless Customer has first obtained the Lead's explicit prior authorization to disclose such data to the specific third party.
Without limiting any of the foregoing, the TCPA requires that: (a) “prior express written consent” (as defined under the TCPA) be obtained before SMS text messages can be sent to any mobile/wireless device (“Marketing Texts”); and (b) evidence of such prior express written consent must be retained for the statutorily required period. Customer represents and warrants that prior to using the APFM Service to send any Marketing Texts it will: (i) obtain the prior express written consent of all Leads that receive Marketing Texts; (ii) record, collect, store and maintain the prior written consents required under this Section 7.3, whether as a sound recording (where received verbally) or in written form, as applicable (collectively, “Consent Records”), for a period of five (5) years after the date that Customer collected each applicable Consent Record; and (iii) otherwise comply with all of the other requirements set forth within the TCPA. Customer shall provide such Consent Records to APFM within two (2) business days of a request for same. The Consent Records shall include, at a minimum, the consent language appearing on the mobile/online media from which the prior express written consent of the Leads was collected and the date and time stamp indicating the time that the Leads’ prior express written consent was collected. Customer will not make any calls or send Marketing Texts to any individual listed on a federal or state Do-Not-Call (DNC) registry unless an exemption applies.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY SERVICE AND ALL LEADS AND SERVICE DATA ARE PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICE IS ERROR-FREE OR THAT OPERATION OF THE COMPANY SERVICE WILL BE SECURE OR UNINTERRUPTED. COMPANY DOES NOT GUARANTEE THAT THE INFORMATION CONTAINED IN ANY LEAD OR SERVICE DATA IS ACCURATE OR COMPLETE, OR THE RESULTS TO BE ACHIEVED THEREFROM, INCLUDING ANY SPECIFIC CONVERSION RATES OR INCREASE IN REVENUE. ANY BENCHMARKING, COMPARATIVE ANALYTICS, PEER-GROUP COMPARISONS, OR SIMILAR INSIGHTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT GUARANTEE ANY PARTICULAR OUTCOME. CUSTOMER UNDERSTANDS AND ACCEPTS THAT LEADS AND SERVICE DATA COLLECTED OR GENERATED HAVE NOT BEEN SCREENED OR VALIDATED BY COMPANY AND ARE NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND ALL RISKS OF CONDITION, USE, QUALITY, DESIGN, OR FITNESS ARE CUSTOMER’S.
APFM is a referral and information source. Customer will not rely on information provided by APFM, and Customer has the sole and absolute responsibility to independently verify any information about all Leads. Customer and each applicable Lead have the responsibility of determining whether such Lead is a good fit for Customer’s services. APFM does not provide medical, legal, financial or other professional advice and the APFM Service is not intended as a substitute for seeking out professional advice or services.
IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
UNDER NO CIRCUMSTANCES WILL COMPANY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Customer will indemnify, defend and hold APFM and the officers, directors, agents, and employees of APFM (“APFM Indemnified Parties”) harmless from Liabilities that are payable to any third party by the APFM Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the APFM Service, Leads or Service Data in violation of this Agreement, including but not limited to: (i) for AI Training, or (ii) in violation of Privacy Laws or the TCPA, (b) its use of the Leads or Service Data, including any consumer contact or information in connection therewith, or (c) Customer’s breach of its representations and warranties set forth in this Agreement, including with respect to Customer’s compliance with Section 1.2 (Restriction and Responsibilities), 2.2 (Leads), 2.6 (Prohibited Consumers), 6 (Confidentiality), 7.2 (Customer Representations and Warranties) and 7.3 (TCPA).
If the use of the APFM Service or any portion thereof by Customer has become, or in APFM’s opinion is likely to become, the subject of any claim of infringement, APFM may at its option and expense (a) procure for Customer the right to continue using the APFM Service as set forth hereunder; (b) replace or modify the APFM Service to make it non-infringing so long as the APFM Service has at least equivalent functionality; (c) substitute an equivalent for the APFM Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
If an APFM Indemnified Party becomes aware of any matter it believes it should be indemnified under Section 9.1, involving any claim, action, suit, investigation, arbitration or other proceeding against such APFM Indemnified Party by any third party (each an “Action”), such APFM Indemnified Party will give Customer reasonably prompt written notice of such Action. The APFM Indemnified Party will have the right to participate fully in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of APFM, such consent not to be unreasonably withheld or delayed.
Customer may not remove or export from the United States or allow the export or re-export of the APFM Service, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the APFM Service (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the United States Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement (excluding payment obligations) to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.
In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force. Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.
Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts in New York, New York, for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.
Customer may not assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of APFM. For purposes of this Agreement, a change of control of Customer constitutes an “assignment” of this Agreement, regardless of how such transaction would be construed under applicable law. APFM may freely assign or transfer this Agreement in whole or in part. In addition, APFM may delegate its duties hereunder as necessary to perform its obligations hereunder, provided that APFM will bear full liability and responsibility for their acts and omissions. Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.
All notices under this Agreement will be in writing and will reference this Agreement. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt. All communications will be sent to the applicable address provided on the Order Form, or such other addresses subsequently communicated to the other Party (either in writing in accordance with this Section 11.6, or otherwise within the APFM Service account).
Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. To the extent of any conflict or inconsistency between the provisions in the body of this Service Agreement and any applicable Order Form, the terms of this Service Agreement will prevail, unless the Order Form expressly amends a provision in this Service Agreement.
Subject to the terms of this Agreement, Customer hereby grants APFM a non-exclusive, royalty-free license to (a) use Customer’s name, address, logo and company description in accordance with its performance of this Agreement and (b) incorporate the above in APFM’s website and other technologies. Customer warrants that none of its intellectual property subject to this license violates or infringes upon the rights of others. Customer will not use APFM’s trademarks or logos for any reason without APFM’s prior written consent.