TERMS & CONDITIONS

(last modified: August 30, 2023)

Home Contractors Review, LLC d/b/a Five Star Rated and Home Services Review (“Company”) requires users of its services, including any entity executing an order form (“Customer”) that references these terms to accept and adhere to these terms and conditions (this “Agreement”). This Agreement governs the purchase and use of Company’s services and is accepted by executing an order form that references this Agreement or by using or accessing Company’s services. The Company may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Company. If Customer continues to use or receive the services following such period, the updated Agreement will be deemed accepted.

1 Order Form. The Service will be ordered by Customer pursuant to executed order forms (each, an “Order Form”). Each Order Form will include the specific services being ordered and the associated fees and any additional terms as applicable. Each additional Order Form upon execution by both parties will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Customer’s subsidiaries or affiliates may also order services under this Agreement by entering into an Order Form signed by such subsidiary or affiliate and Company and agreeing to be bound by the terms of this Agreement and such Order Form.

2 Service. Company will provide the following services to Customer as described in the Order Form (collectively, the “Service”):

    2.1     Five Star Rated Listing. Customer must be accepted into the Five Star Rated Program to receive a Five Star Rated Listing. Company will list Customer on fivestarrated.com and in the print edition of Five Star Rated (together, “Five Star Rated”). Customer’s listing in Five Star Rated (“Customer Listing”) will include creation of a Customer profile. Customer will be given an opportunity to review and comment on the description of Customer Listing in Five Star Rated prior to the initial publication print date, provided that the content of the profile will be determined finally by Company in its sole discretion. Customer Listings may be updated by Company from time to time, in Company’s sole discretion. Company will notify Customer via email of the date(s) of publication of Five Star Rated listed above. In the event Customer is not included in any Five Star Rated publication (or with respect to any particular category or region), or if Five Star Rated is not published for any reason, Customer agrees that Company shall have no liability whatsoever to Customer for such exclusion or non-publication.

        2.1.1     Answering Service. Company may provide a call center answering service. Company will answer calls directed to Customer and provide relevant Client contact and project information to Customer’s provided email.

        2.1.2     Phone Leads. Customer must receive a Customer Listing, either in Five Star Rated or on fivestarrated.com to receive Phone Leads. The Company will track inbound phone calls directed to Customer from readers of Customer’s Listing and Company’s and its affiliates’ websites (“Phone Leads”) using its automated system (a “Call Tracking System”) and will forward calls to Customer’s main number, or such other local number specified by Customer. All Phone Leads will be recorded and/or monitored for quality assurance. Customer agrees to such recording and will obtain the consent of all of its operators to the same. If consent from Clients is required by law, Company will notify Clients of the recording via a recorded message.

        2.1.3     Website Leads. Customers must receive a Customer Listing on fivestarrated.com to receive Website Leads. Company will forward messages acquired by Company via its websites and affiliates, including all emails directed to Customer from the Five Star Rated website to the Customer’s specified web lead email address, as may be modified by Customer in writing from time to time (“Website Leads” and together with Phone Leads, “Leads”).

3 Customer Acceptance. Company will determine, in its sole discretion, if Customer will be accepted to receive the Service and participate in the Guidebook Program. Company will provide a written notice of such acceptance to Customer. If Customer is accepted, Company will assign a rating to Customer based on the Client reviews and other criteria. Customer acknowledges and agrees that Company’s acceptance into the Guidebook Program (including the assignment of ratings) is determined based on Company’s criteria and such rating outcomes cannot be purchased. In the event Customer is not accepted into the Guidebook Program, this Agreement will immediately become null and void and be of no further force or effect. To be eligible to receive and continue to use the Service, Customer must be in good standing with respect to each of the Customer obligations set forth in Section 4 below.

4 Customer Obligations. At all times during the Term, Customer shall:

    4.1     Either (a) provide Company a complete copy of its Client jobs database for the immediately preceding twelve (12) months or longer, if requested, as necessary to obtain sufficient Client reviews (at least twenty-five (25) reviews are needed) or (b) provide access to a sufficient volume of reviews collected through an approved research partner.

    4.2     Maintain comprehensive general liability insurance with customary limits, as determined by Company in its sole discretion, and will add Company as a certificate holder. Customer will also carry workers’ compensation insurance if required by state law. Customer will provide a Certificate of Insurance evidencing coverage.

    4.3     Hold any legally required state-issued professional licenses as applicable to the Customer Listing or services provided by Customer to any Lead and provide proof of such licensure to Company.

    4.4     Service all geographic regions listed as Coverage Areas in the applicable Order Form above and shall not to decline Leads from within any of the Coverage Areas.

    4.5     Not disclose Leads to any other person or entity.

    4.6     Treat all payments made to Company for the Service as a general marketing expense. Customer shall not directly pass any fees paid by Customer to Company directly through to any individual Lead.

    4.7     Deliver prompt and high-quality services to its Clients and honor all agreements made with its Clients and suppliers.

    4.8     Respond within 4 business days to any Client complaint that Company provides to Customer and cooperate with Company to provide a satisfactory resolution to any such complaint.

5 Third-Party Client Reviews . Client reviews of Customer via an approved research partner, including Google and GuildQuality. Customer authorizes Company to access and publish survey results and information collected through an approved research partner for purposes of informing Customer’s acceptance to receive the Service and member ratings and to be incorporated into Customer Listing. Customer understands and agrees that any third-party services are subject to their own terms and conditions and Customer may be bound by such terms and conditions by requesting or agreeing to link Customer’s accounts or use reviews from such third-party services.

    5.1     Google Terms and Conditions. Customer will be bound by the Google’s APIs Terms of Service, Terms of Service, and Privacy Policy.

6 Intellectual Property.

    6.1     Use of Company Marks. During the Term, Company grants Customer a limited, nonexclusive, nontransferable license to use the names “Five Star Rated” the Five Star Rated logo, and the information listed in the print and online edition of Guidebooks, including, but not limited to, ratings and comments from interviews for marketing purposes in accordance with Company’s guidelines. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.

    6.2     Use of Customer Marks. During the Term, Customer grants Company a limited, nonexclusive, nontransferable license to use Customer’s name and logo in Company co-branded marketing, promotional materials and in connection with the provision of the Service hereunder.

    6.3     Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Service are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.

7 Fees.

    7.1     Annual Participation Fee. In addition to the fees below, Customer shall pay Company an annual participation fee (“Participation Fees”) as set forth in the applicable Order Form. Unless otherwise set forth on the Order Form, the Annual Participation Fee for the Initial Term will be billed to Customer in full upon the Effective Date. The Annual Participation Fee for any Renewal Term will be billed in or around November of the calendar year preceding each Renewal Term year.

    7.2     Call Fees. For Guidebook Program Customers, the Company may offer Customer to pay for leads sourced from the Program by paying either a monthly flat fee or on a pay-per-call basis. Where a choice is permitted by the Company, Customer’s election will be set forth on the Order Form.

        7.2.1     Monthly Flat Fee. For unlimited calls and Web Leads per month that may be made to Customer from the Program, Customer will pay a flat monthly fee set forth on the Order Form. Unless otherwise set forth on the Order Form, the monthly flat fee will begin following the month in which the first Guidebook is mailed. This monthly flat fee includes (a) form fill leads that may be placed by Clients directly to the Customer or its partners; (b) unlimited leads that may be sourced through Website.

        7.2.2     Per Call Fees. Customer shall pay Company according to the listings set forth in the Order Form for (a) each Web Lead and (b) each unique phone number included in the Phone Leads that results in a call lasting more than 30 seconds as measured by the Call Tracking System at the time of connection (each a “Unique Inbound Call”) (collectively, “Per Call Fees”). For purposes of the foregoing sentence with respect to Phone Leads, a unique phone number is one that has not been counted during the current calendar month. Company will invoice Customer monthly in arrears for the Per Call Fees for the immediately preceding month, together with a report of the Unique Inbound Calls received during such period. Phone Leads where the caller identification information is not available to Company shall be deemed a Unique Inbound Call.

        7.2.3     Answering Service Fees. Answering Service Fees are usage based and invoiced in arrears on a monthly basis by the 15th day of the calendar month following the month in which services were received. Fees are calculated based on the total number of minutes used in the applicable month and invoiced at the applicable tier rate as described on our Help Center.

    7.3     Payment Terms. Call Fees and Participation Fees collectively referred to as “Fees.” All Fees are due and payable within fifteen (15) days after receipt by Customer of an invoice from Company with respect to such Fees. All late payments will bear interest at a rate of 1.5% per month or the highest rate permissible under applicable law, whichever is less. Customer will also reimburse Company for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Company, upon 30 days’ notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time, which right will include without limitation the right to charge a Fee for new features or functions of the Service or for features or functions that have previously been offered at no charge. Unless otherwise noted in the Order Form, all Fees are payable in United States Dollars, and non-refundable.

    7.4     Taxes. Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer and Customer will pay such taxes, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

8 Term. This Agreement begins on the date of the last signature on an Order Form (“Effective Date”) and continues through the Term End Date listed in such Order Form (the “Initial Term”), and shall thereafter renew for successive annual periods ending on October 31^st each year (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated by either party as permitted by this Agreement. At the end of the Term, the Term may be renewed upon mutual written consent of the parties.

9 Termination.

    9.1     Termination. Either party may terminate this Agreement at the end of the Initial Term or at the end of any Renewal Term by providing written notice to the other party by no later than October 31^st of the calendar year during such term. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms including the payment of fees and Customer’s obligations under Section 4, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.

    9.2     Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (b) any unpaid, amounts due through termination will become immediately due and payable.

    9.3     Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.

10 Applicable Laws. Customer’s use of the Service is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Service or any information data in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Service is compliant with applicable laws is the responsibility of Customer.

11 Indemnification. Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to Customer’s use of the Service.

12 Restrictive Covenant . Customer represents and warrants that Customer and its officers and directors do not currently and will not during the term of this Agreement and for a period of one year following termination of this Agreement (“Restricted Period”), directly or indirectly own, manage, operate, finance, control or advise any enterprise engaged in any business or activities that compete with or adversely affect Company. Customer further agrees that it will not solicit for hire or hire any employee of Company during the Restricted Period.

13 Confidential Information.

    13.1     Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Service, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.

    13.2     Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.

    13.3     Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, (d) is independently developed by the receiving party without reference to the Confidential Information or (e) Third Party Client reviews, survey results and information shared with Company by a third-party approved research partner pursuant to the terms hereof. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.

14 Disclaimers. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS, THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR THAT LEADS WILL BE ACCURATE, COMPLETE, OR RESULT IN SALES REVENUE. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.

15 Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 12 MONTH(S) PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.

16 Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.

17 Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to support@fivestarrated.com. Company will send notices to one or more contact(s) on file for Customer.

18 Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.

19 Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.

20 No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

21 Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.

22 Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.

23 Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.

24 Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Georgia, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Fulton County, Georgia. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.

25 Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.

26 Counterparts, Entire Agreement and Order of Precedence. This Agreement or any Order Form may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Form(s) states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Form; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.