MASTER SERVICE AGREEMENT, TERMS AND CONDITION
PLEASE REVIEW THE MASTER SERVICE AGREEMENT IN ITS ENTIRETY. YOU AGREE THAT YOUR CONTINUED USE OF THE SITE AND THE SERVICES PROVIDED, BY INSURE HEAVEN, ACKNOWLEDGES YOUR ACCEPTANCE TO THE MASTER SERVICE AGREEMENT INCLUDING ANY CHANGES. IF YOU DO NOT AGREE WITH THE CHANGES, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SERVICES OR SITE.
INSURE HEAVEN RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME FOR ANY REASON.
This Insure Heaven Lead Sales and Lead Call Transfer Agreement ("MASTER SERVICE AGREEMENT" or "Agreement"), entered into by and between Insure Heaven, Inc. a Delaware corporation, with its principal place of business located at 14110 Dallas Pkwy. Ste 125, Dallas TX 75254 ("Insure Heaven"), and you ("Purchaser"), sets forth the parties' respective rights and obligations concerning the sale of certain Leads and Call Transfers (as those terms are defined below) by Insure Heaven to Purchaser. This MASTER SERVICE AGREEMENT shall incorporate the conditions, pricing and other applicable CAMPAIGN PACKAGE TERMS that Purchaser agreed to via the Website registration, registration over phone through Insure Heaven Representative or actually signing this Agreement, as required by Insure Heaven (collectively, the "CAMPAIGN PACKAGE TERMS" and together with this MASTER SERVICE AGREEMENT, the "Agreement"). Where there is a conflict between this MASTER SERVICE AGREEMENT and the CAMPAIGN PACKAGE TERMS, the CAMPAIGN PACKAGE TERMS shall govern in all respects, but solely to the extent of the conflicting terminology or provision(s). The Agreement between the Parties shall incorporate by reference, in their entirety as if set forth herein at length, Insure Heaven's Privacy Policy, Terms and Use, End-User License Agreement, and any other Website Terms and Conditions contained on Insure Heaven's website, www.InsureHeaven.com.
- Lead Call Transfer Services.Where set forth in the applicable CAMPAIGN PACKAGE TERMS, Insure Heaven and its third party marketing partners agree to generate requests ("Phone Call Requests") from Consumers to be received as telephone calls from Purchaser (each such request, a "Lead Call Transfer(s)", and together with the Leads, the "Deliverables"). Where a Consumer submits a Phone Call Request to Insure Heaven, and is otherwise considered by Insure Heaven to be a Successful Lead Call Transfer (as defined below), Insure Heaven agrees to promptly provide such Lead Call Transfers to Purchaser, in the form of a telephone call, via Insure Heaven's designated proprietary technological platform (the "Insure Heaven Platform").
- Lead Generation Services.Where set forth in the applicable CAMPAIGN PACKAGE TERMS, Insure Heaven agrees to generate and collect self-reported data records (each individual data record a "Lead") as provided by prospective customers (each, a "Consumer") to Insure Heaven and its third party marketing partners. Insure Heaven agrees to transfer such Lead data to the Purchaser.
- Call Recording.Purchaser understands that all calls to or from Insure Heaven, including, without limitation, Lead Call Transfers, may be monitored or recorded. Purchaser consents to this recording and agrees to obtain the consent of its agents, employees, contractors, and anyone else who may be recorded on any call to or from Insure Heaven. Call recordings may be stored by Insure Heaven for an indefinite period of time.
- Upon Purchaser's acceptance of this Agreement (including the Master Agreement and CAMPAIGN PACKAGE TERMS), Purchaser will pre-pay Insure Heaven by credit card ("Purchaser Credit Card") the fees set forth in the applicable CAMPAIGN PACKAGE TERMS ("Deposit" or “Recharge”) for the number of Successful Leads and Successful Lead Call Transfers, as the case may be (collectively, "Successful Deliverables"), requested by Purchaser. For purposes of the Agreement, "Wallet Funds" shall mean the Prepaid amount or Recharge and other amounts actually deposited by Purchaser into Purchaser's account, less all amounts owed to Insure Heaven as payment for Successful Deliverables. In order to request a withdrawal, Purchaser must contact Purchaser's account executive, who assisted the Purchaser or reach out through contact information on Insure Heaven website. ALL DETERMINATIONS WITH RESPECT TO THE AMOUNT OF WALLET FUNDS WILL BE MADE BY INSURE HEAVEN, IN ITS SOLE AND ABSOLUTE DISCRETION, AND SUCH DETERMINATION SHALL BE FINAL AND BINDING IN ALL RESPECTS.
- Term and Termination.
- Master Agreement Term. The term of the Agreement shall be one (1) month and shall commence on the date indicated on the sign up of this Agreement. Thereafter, the Agreement shall automatically renew on an monthly basis for one (1) month terms (each, a "Renewal Term"), unless otherwise terminated pursuant to the provisions set forth hereinbelow (the Initial Term and any subsequent Renewal Terms shall be collectively referred to as the "Term"). Notwithstanding anything herein to the contrary, Purchaser may terminate the Agreement at any time for any reason upon five (5) business days’ prior written notice to the other party.
- Campaign Package Term. The term of the CAMPAIGN PACKAGE TERM shall be on month to month basis and shall commence on the date indicated in the CAMPAIGN PACKAGE TERMS ("Initial Term"). Thereafter, the CAMPAIGN PACKAGE TERM shall automatically renew on monthly basis (each, a "Renewal Term") on the last business day of the prior month, unless otherwise terminated pursuant to the provisions set forth hereinbelow (the Initial Term and any subsequent Renewal Terms shall be collectively referred to as the "Term").
- In addition to the above, this Agreement and CAMPAIGN PACKAGE TERM cannot be terminated during the current month. This Agreement and CAMPAIGN PACAGE TERM may be terminated by Purchaser only effective next month Renewal Term upon five (5) business days’ prior written notice to Insure Heaven. For the purposes of clarity, if this AGREEMENT and CAMPAGIN PACKAGE TERM is initiated in month of January, the Purchaser cannot terminate the services for the month January. The Purchaser can only request the termination, of services and DELVERABLES from Insure Heaven, effective February 1st upon five (5) business days’ prior written notice before February 1st. Insure Heaven can terminate this Agreement and CAMPAIGN PACKAGE TERM at any time, effective immediately upon written notice, if: (i) Insure Heaven files a voluntary petition in bankruptcy or makes an assignment for the benefit of creditors; or (ii) Purchaser breaches any of the material terms of this Agreement if such material breach is not remedied within five (5) business days from the receipt of written notice of such material breach; or (iii) as to Insure Heaven, in its sole discretion, if Purchaser fails to pay all invoices in accordance with the terms of the applicable Campaign Package Term(s) or Purchaser's credit is or becomes unsatisfactory, for whatever reason, to Insure Heaven, or if Insure Heaven knows of or reasonably suspects any unethical, illegal or otherwise inappropriate conduct by Purchaser that may subject Insure Heaven to legal or civil liability, inquiry or investigation. Upon termination or expiration of this Agreement for any reason, Purchaser will pay Insure Heaven all amounts then due and owing as of the termination date, with such payment to be made during the next billing cycle. Payments that are past due shall accrue interest of 2 percent (2%) per month.
- Successful Deliverables.As explained in Section 4 above, Successful Leads and Successful Lead Call Transfers are collectively referred to as Successful Deliverables. A "Successful Lead" is an individual person that is not computer generated, through means such as by use of a robot, spider, computer script or other automated, artificial or fraudulent method designed to create the appearance of being a real live person. A "Successful Lead Call Transfer" is an individual person phone call that: (i) is not a fraudulently concocted, created or generated Consumer; and (ii) has submitted a valid Phone Call Request (as defined above).
- Unsuccessful Deliverables.Where Purchaser (i) does not receive a Deliverable(s), or (ii) attempts to get credit lead for a Deliverable(s), and/or (iii) where such Deliverable(s) is later determined not to be a Successful Deliverable(s), Purchaser understands, acknowledges and agrees that it shall have no rights in and to such Deliverable(s), and the subject Deliverable(s) shall automatically become Unsuccessful Deliverables and be the sole and exclusive property of Insure Heaven. Purchaser agrees that all rights not included in this license are expressly reserved by Insure Heaven. Without limiting the generality of the Confidentiality obligations set forth in this Agreement, Purchaser agrees that it: (a) will not transfer, export, display, forward or otherwise share information contained in the Unsuccessful Deliverables to or with any third party; (b) will not use the information contained in the Unsuccessful Deliverables on its own behalf or for its own benefit in any manner unless expressly authorized in writing by Insure Heaven; (c) will not use the information contained in the Unsuccessful Deliverables to create any interactive on-line, CD-ROM or other derivative products; (d) will not publicly display the information contained in the Unsuccessful Deliverables on the Internet; (e) will notify Insure Heaven as soon as it knows or has reason to of any actual or suspected unauthorized use of or access to the information contained in the Unsuccessful Deliverables, and (f) provide reasonable assistance to Insure Heaven in the investigation and prosecution of any such unauthorized use or disclosure, use or access.
- Where Purchaser suspects that a Deliverable submitted by Insure Heaven is Unsuccessful or not a Successful Deliverable, Purchaser must notify Insure Heaven within five (5) business days of receipt of such Deliverable. If Insure Heaven receives such notice from Purchaser within such time period, the parties agree to investigate the subject Deliverable and seek to resolve the matter in good faith within fifteen (15) business days following Insure Heaven's receipt of the notice. If the parties acting together in good faith determine that such Deliverable was a Successful Deliverable, then no further action shall be taken. If the investigation reveals that the Deliverable was not a Successful Deliverable and Purchaser already paid for it, Insure Heaven shall provide Credit to Purchaser's only in form of another Successful Deliverable. Where the parties cannot agree on the successfulness of the Deliverable, Purchaser acknowledges and agrees that Insure Heaven's good faith determination shall control in all respects. A Deliverable that is both Successful and paid for by Purchaser is a "Completed Deliverable". A Deliverable that is both Unsuccessful and not paid for by Purchaser is a "Uncompleted Deliverable". All Uncompleted Deliverables shall be deemed the sole and exclusive property of Insure Heaven and shall be treated by Purchaser as the Confidential Information (as defined below) of Insure Heaven, subject to all the restrictions and limitations set forth in this Agreement. Purchaser acknowledges and agrees that it shall have no ownership interest in or right to access (including, without limitation, the right to possess and/or use) the data associated with Uncompleted Deliverables, and Insure Heaven reserves any and all rights in and to the data not otherwise explicitly granted in this Agreement.
- Unless otherwise designated in the CAMPAIGN PACKAGE TERMS, upon Purchaser's receipt of and payment for a Deliverable (in accordance with the payment terms agreed to by the parties), Insure Heaven shall grant to Purchaser joint ownership of the data associated with such Deliverable. For the avoidance of doubt, Purchaser understands, acknowledges and agrees that only at the point at which Purchaser receives and pays for the Deliverable will Purchaser have joint ownership of the data associated with the deliverable. If Purchaser is purchasing Deliverables as part of a Carrier Sponsored Program, the applicable Carrier will also be entitled to joint ownership of all data associated with each Deliverable. A “Carrier Sponsored Program” is a program whereby a company on behalf of whom Purchaser sells, markets or promotes products or services (such company, a “Carrier”) will make funds available to Purchaser in order to pay for all or a portion of the Deliverables.
- Confidential Information.As used herein, "Confidential Information" shall mean: (a) either party's proprietary information, including but not limited to any plans, practices, strategies, forecasts and analyses or other information regarding a party's operations, technology, software, algorithms, business, finances, marketing, industry know-how, trade secrets, accounts, customers; (b) information marked or designated by either party as confidential; (c) information otherwise disclosed by either party in a manner consistent with its confidential nature; (d) the terms and conditions of the Agreement, including pricing information; (e) as to Insure Heaven, the Unsuccessful Deliverables, any and all information contained in the Unsuccessful Deliverables, and all aspects of, and processes associated with, the Insure Heaven Platform; and (f) both party's information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of services pursuant to the Agreement, one party may disclose Confidential Information ("Disclosing Party") to the other party ("Receiving Party"). Confidential Information shall not be used or disclosed, except in accordance with applicable law or the terms of this Agreement. Receiving Party agrees to refrain from disclosing such Confidential Information to any third party, unless (a) disclosure is necessary and permitted in connection with the Receiving Party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties, (b) disclosure is required by applicable law; provided, however, that the Receiving Party shall promptly give the Disclosing Party advance notice thereof so as to afford the Disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information, or (c) any disclosure is made with the prior written consent of the Disclosing Party. Receiving party acknowledges that Disclosing Party does not grant any license to keep or use the Confidential Information and that Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. Receiving Party acknowledges that the Confidential Information is provided "as is" and “as available” and Disclosing Party makes no warranties or guarantees as to its accuracy or completeness or fitness for a particular purpose. Notwithstanding anything contained herein to the contrary, these confidentiality obligations do not apply where the Receiving Party can demonstrate with clear and objective evidence that the information: (i) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the Receiving Party; (iii) was rightfully and lawfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (iv) is independently developed by the Receiving Party without reliance upon or reference to the Disclosing Party's Confidential Information. Upon termination of this Agreement, or otherwise on demand by Disclosing Party, Receiving Party agrees that it will promptly return the Confidential Information to Disclosing party or destroy it, as determined in Disclosing Party's sole discretion, un-copied and undistributed. Destruction of any Confidential Information shall be certified in writing within five (5) days of such request. Receiving Party acknowledges and agrees that monetary damages for breach or threatened breach of this provision are not easily capable of determination and may not be adequate relief, and that the Disclosing Party shall further be entitled to seek injunctive relief without the requirement to post bond, in addition to seeking any other legal and equitable remedies. This section (Confidential Information) shall survive any expiration or termination of the Agreement and remain in full force and effect for a period of three (3) years thereafter or until the subject Confidential Information is no longer protectable under New York State law, whichever is longer. Notwithstanding anything to the contrary in this Agreement, if Purchaser is purchasing Deliverables as part of a Carrier Sponsored Program, Insure Heaven shall be permitted to disclose the Deliverables, any reports related thereto, Purchaser’s usage and amounts spent under this Agreement, and any other relevant information related to this Agreement or Purchaser’s relationship with Insure Heaven, as may be requested by the Carrier from time to time.
- Purchaser represents and warrants to Insure Heaven that: (a) Purchaser has full power and authority to enter into the Agreement; (b) the use of Deliverables provided to Purchaser will not violate any law, statute rule or other governmental regulation; (c) Purchaser has obtained, and shall maintain at all times during the term of the Agreement, all necessary permits and licenses required by all applicable state and federal governmental bodies in order to perform and/or offer its or any third party's products and/or services in any and all jurisdictions applicable to Purchaser; (d) Purchaser shall only offer its insurance-related products and/or services to the Completed Deliverables ("Purchaser Services"); and (e) Purchaser's marketing attempts, as well as Purchaser Services, will at all times fully comply with all applicable state and federal laws, rules and/or regulations including, but not limited to, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule ("ATSR"), 16 CFR 310 et seq., and those state and federal laws, rules and regulations governing the NDNCR, telemarketing and deceptive trade practices, and all state and federal laws, rules and regulations promulgated under any of the foregoing (collectively, "Applicable Laws"). Insure Heaven represents and warrants to Purchaser that: (i) Insure Heaven has full power and authority to enter into the Agreement; (ii) the execution, delivery and performance by Insure Heaven of its obligations under this Agreement will not violate any law, statute or other governmental regulation by which it is bound; and (iii) Insure Heaven's Deliverable generation activities will at all times fully comply with all Applicable Laws.
- Purchaser agrees that Insure Heaven, or any designee of Insure Heaven that is legally bound by obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement and for three (3) months thereafter to reasonably examine, inspect, audit and review (collectively, "Audit") Purchaser's books, records and any source documents used in the preparation thereof, as same relate to unauthorized use of the Unsuccessful Deliverables generated hereunder. Such Audit shall be conducted during normal business hours and upon seven (7) days' prior written notice to Purchaser. Such Audit shall be at Insure Heaven's sole cost and expense and be limited to those books and records that Insure Heaven reasonably believes relate to unauthorized use of the Unsuccessful Deliverables. Where Purchaser has used the Unsuccessful Deliverables or any information contained therein or associated therewith, Purchaser shall immediately remit payment for such Unsuccessful Deliverables, plus applicable interest, in accordance with the payment terms set forth herein, and the Purchase shall reimburse Insure Heaven for the full costs and expenses associated with conducting the Audit.
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- By Purchaser. Purchaser agrees to indemnify, defend and hold harmless Insure Heaven, its parents, affiliates and subsidiaries, and each of their respective members, owners, officers, investors, partners, directors, shareholders, employees and authorized representatives and agents, from and against any and all liability, claim, loss, lien, damage, demand, judgment, verdict, proceeding, action, lawsuit, investigation, inquiry, cost and/or expense of any kind or nature (including reasonable attorneys' fees and litigation costs) (collectively, "Claim(s)"") asserted by any third party due to, arising from, or in connection with: (a) any breach by Purchaser of the Agreement, including, without limitation, any provision, obligation, representation or warranty contained herein; (b) any Claim related to the Purchaser's Services and/or products; and (c) any Claim related to Purchaser's marketing activities; and (d) any Claim related to the use of the Deliverables; and (e) any claim related to Purchaser's federal and/or state certification(s), license(s) and/or permission(s) to market and sell its products and/or services.
- By Insure Heaven. Insure Heaven agrees to indemnify, defend and hold harmless Purchaser from and against any and all Claims asserted by any third party due to, arising from, or in connection with any breach by Insure Heaven of the Agreement.
- If any Claim is or will be brought against either Party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other Party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim; provided, however, that the Indemnifying Party will not agree to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party, which will not be unreasonably withheld or delayed.
- DISCLAIMER OF WARRANTIES.THE SERVICES AND DELIVERABLES PROVIDED BY INSURE HEAVEN UNDER THE AGREEMENT ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, INSURE HEAVEN DISCLAIMS ANY AND ALL WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, PERFORMANCE, LEVEL OF SUCCESS WITH RESPECT TO ANY CAMPAIGN, AND ANY OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INSURE HEAVEN DOES NOT WARRANTY, PROMISE, REPRESENT OR GUARANTEE THE VOLUME OR FREQUENCY OF DELIVERABLES OR RESPONSE RATES. INSURE HEAVEN'S SERVICES, INCLUDING BUT NOT LIMITED TO THE DELIVERABLES, MAY CONTAIN BUGS, TECHNICAL OR OPERATIONAL PROBLEMS AND/OR OTHER LIMITATIONS ADVERSELY IMPACTING INSURE HEAVEN'S ABILITY TO MAKE DELIVERABLES, PURCHASER'S ABILITY TO RECEIVE AND ACCEPT DELIVERABLES AND/OR THE QUALITY AND/OR USEFULNESS OF THE DELIVERABLES. INSURE HEAVEN DOES NOT WARRANTY, PROMISE, REPRESENT OR GUARANTEE THAT PURCHASER'S USE OF THE DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PURCHASER WILL BE ABLE TO USE THE DELIVERABLES. INSURE HEAVEN EXPRESSLY DISCLAIMS RESPONSIBILITY FOR THE OPERATION OF AND/OR DAMAGE TO PURCHASER'S AND/OR ANY THIRD-PARTY(S)' DATA SECURITY SYSTEMS AND/OR PRIVACY PROTECTION PROCEDURES ARISING FROM ANY DELIVERABLES OR UNSUCCESSFUL DELIVERABLES, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, ASSOCIATED WITH SAME.
IF PURCHASER HAS REQUESTED THAT A INSURE HEAVEN REPRESENTATIVE CHANGE ON ITS BEHALF A ANY CAMPAIGN PACKAGE OR PROGRAM OFFERED BY INSURE HEAVEN, ANY CALL FILTER CRITERIA AND/OR ANY OTHER ELEMENT RELATING TO PURCHASER'S ACCOUNT OR YOUR PARTICIPATION IN A INSURE HEAVEN PROGRAM (COLLECTIVELY, "MODIFICATION(S)") (WHETHER ELECTRONICALLY, VERBALLY, IN WRITING OR OTHERWISE), PURCHASER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT INSURE HEAVEN MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTEES OR PROMISES THAT THE REPRESENTATIVE WILL ACCURATELY RECORD THE MODIFICATION(S) AND/OR ENTER SUCH MODIFICATION(S) INTO THE PLATFORM PROPERLY AND/OR ENTER THE MODIFICATION(S) INTO THE PLATFORM IN A TIMELY MANNER. PURCHASER ASSUMES ANY AND ALL RISK ASSOCIATED WITH HAVING A INSURE HEAVEN MAKE ANY MODIFICATION TO PURCHASER'S ACCOUNT.
- LIMITATION OF LIABILITY.IN NO EVENT SHALL INSURE HEAVEN, ITS PARENTS, SUBSIDIARIES OR AFFILIATES OR ANY OF THEIR OFFICERS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, PARTNERS, DIRECTORS, OWNERS, INVESTORS, SHAREHOLDERS, REPRESENTATIVES OR AGENTS BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, LOST BUSINESS OR INFORMATION, IMPAIRMENT OF ASSETS, OR LOST GOOD WILL OR REPUTATION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY CAMPAIGN, HOWSOEVER CAUSED, WHETHER BASED IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, INSURE HEAVEN'S TOTAL AGGREGATE LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO INSURE HEAVEN BY PURCHASER PURSUANT TO THE AGREEMENT. INSURE HEAVEN DISCLAIMS ANY AND ALL LIABILITY FOR, AND SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR, THE ACTIONS OR INACTIONS OF ITS SUB-LICENSEES.
- Non-Circumvention; Non-solicitation.
- Non-circumvention. Purchaser recognizes that Insure Heaven has proprietary relationships with the affiliates, advertisers and other third parties that purchase Deliverables ("Clients") from and/or market Deliverables ("Marketers" and together with the Clients, "Partners") to Insure Heaven. During the term of this Agreement and for a period of one (1) year following termination or expiration hereof, Purchaser agrees not to circumvent Insure Heaven's relationships with such Partners, or otherwise offer, make available, provide, obtain, purchase, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Purchaser hereunder for any Partner that is known, or should reasonably be known, by Purchaser to have such a relationship with Insure Heaven. Notwithstanding the foregoing, to the extent that Purchaser can establish by reasonable objective evidence that any such Partners already obtained such services from, or provided such services to, Purchaser prior to the Effective Date of this Agreement, then Purchaser shall not be prohibited from continuing such relationship(s). Purchaser agrees that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that Insure Heaven shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Purchaser in the amount equal to one hundred percent (100%) of the fees paid by Purchaser to, or received by Purchaser from, the subject Partner for the prior twelve (12) month period; and/or (c) any and all other remedies available to Insure Heaven at law or in equity.
- Non-solicitation. During the Term of this Agreement and for a period of twenty four (24) months immediately following the date of termination hereof, Purchaser will not, directly or indirectly, for itself or for the benefit of any third-party, hire or solicit for employment or services, any employee, consultant or independent contractor of Insure Heaven.
- Force Majeure.Other than for payment obligations, neither party will be liable, or be considered to be in breach of the Agreement, on account of such party's delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party prompt notice of such Force Majeure Event and any resulting delay or inability to perform, and will use commercially reasonable efforts to minimize the impact of any such event. For the avoidance of doubt, this section does not relieve Purchaser of any of its payment obligations.
- Relationship of the Parties.The relationship of Insure Heaven and Purchaser established by this Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint-venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party's behalf. Each party shall be solely responsible for the actions or inactions of its respective employees, agents, affiliates and representatives.
- Choice of Law; Jurisdiction and Venue.This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas without giving effect to its conflicts of law provisions that might apply the laws of another jurisdiction. The Parties hereby agree that Jurisdiction and Venue for any claims or causes of action brought under or related to the obligations, undertakings and commitments contained in this Agreement or the relationship of the Parties shall be in a court of competent jurisdiction located in the City of Dallas, Dallas County, Texas, USA. For this purpose, each Party consents to personal jurisdiction in any such court of competent jurisdiction and waives any right to dismiss or transfer such action or proceeding because of the inconvenience of the forum. Nothing contained in this provision shall prevent enforcement in another forum of any judgment obtained in a court identified in this Paragraph.
- Cumulative Rights; Waiver.Except as otherwise specified herein, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of a party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. No delay or failure by either party to exercise any right, power or option under this Agreement, and no partial or single exercise of that right, power or option, shall constitute a waiver of that or any other right, power or option, unless otherwise expressly provided herein. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. No waiver of any right shall be effective against a party unless in writing and executed by the waiving party. A waiver of default shall not be a waiver of any other or subsequent default.
- Entire Agreement; Modifications.This Agreement, together with any applicable CAMPAIGN PACKAGE TERMS, contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior written, electronic or oral agreements and understandings between the Parties. No modification, change or amendment of this Agreement or any CAMPAIGN PACKAGE TERMS shall be valid, effective or legally enforceable against Insure Heaven unless in writing and executed by a duly authorized representatives of Insure Heaven. INSURE HEAVEN RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME FOR ANY REASON. YOU WILL BE NOTIFIED BY EMAIL IF CHANGES HAVE BEEN MADE. UPON NOTIFICATION OF CHANGES TO THIS AGREEMENT, PLEASE REVIEW THE AGREEMENT IN IT ENTIRETY. YOU AGREE THAT YOUR CONTINUED USE OF THE SITE AND INSURE HEAVEN SERVICES SIGNIFIES YOUR ACCEPTANCE OF THE CHANGES TO THE TERMS. IF YOU DO NOT AGREE WITH THE CHANGES, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE INSURE HEAVEN SERVICES OR SITE.
- In case any one or more provisions contained in the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect under any applicable law, such invalidity, illegality or unenforceability shall not affect any provisions of this Agreement. Upon such determination that any term or other provision is invalid, illegal or unenforceable, then such provision will be severed and replaced with a new provision that most closely reflects the real original intention of the parties. Any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
- Purchaser shall not, without the prior written consent of Insure Heaven, assign its rights or delegate its duties under the Agreement; provided, however, that either party may, in the event of a merger, acquisition, joint venture or sale of all or substantially all of such party's assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. Subject to the foregoing, the provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
- Electronic Signatures.Purchaser acknowledges and agrees that by clicking on the Submit button, or taking such other action as may be designated by Insure Heaven as a means of accepting the Agreement, Purchaser is submitting a legally binding electronic signature and is entering into a legally binding contract. Purchaser acknowledges that Purchaser's electronic submission constitutes Purchaser's agreement and intent to be bound by the Agreement. PURSUANT TO ANY AND ALL APPLICABLE STATUTES, REGULATIONS, RULES, ORDINANCES OR OTHER LAWS INCLUDING, WITHOUT LIMITATION, THE UNITED STATES ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, P.L. 106-229 (THE "E-SIGN ACT") AND/OR OTHER SIMILAR STATUTES, PURCHASER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY INSURE HEAVEN. Further, Purchaser hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
- All provisions of this Agreement that by their nature and/or content are intended to survive completion, termination or expiration hereof shall so survive.
- No Third Party Rights.Except as may be expressly provided herein, nothing in this Agreement shall be enforceable by any party other than the parties hereto, and no third party beneficiary rights are conferred on any third party.
- Section Headings.The titles to the paragraphs in this Agreement are solely for the convenience of the parties and shall not be used to explain, modify, simplify, or aid in the interpretation of said covenants or provisions set forth therein.
- This Agreement and any Campaign Package Term(s) may be executed (electronically or otherwise) in any number of counterparts and all of which shall together constitute one and the same instrument.
- No Reliance; Interpretation.Purchaser acknowledges and agrees that it (i) has had the opportunity to seek the advice of legal counsel of its choice, (ii) has read and understands all of the terms and conditions of this Agreement, and (iii) acknowledges that it has not relied on any representation by Insure Heaven in executing this Agreement, except as may be expressly stated herein. The parties stipulate that the rule of construction that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
- These Campaign Package Terms and Master Service Agreement together in conjunction will be considered a binding agreement.
- Initial Prepaid charge is required at signup. Account will be Recharge automatically once the Wallet Fund reaches 10% of the Prepaid amount, based on your selected Package above. For example, the gold package will be Recharged automatically when the Wallet Fund reaches the balance of $400. Additional Service fee of 2.9% will be charged on each prepaid or recharge transaction.
IN WITNESS WHEREOF, the parties here to have accepted this Master Service Agreement and Campaign Package Terms effective as of the todays date.
Revised and Effective: September 2019