Welcome to Express Homes, Inc. dba Express Modular! This Agreement governs your relationship with Express Homes, Inc. In this Agreement, we will refer to you, the member Service Professional, and all of your d/b/a’s, affiliates, agents, employees, representatives and subcontractors as “you” or “SP” and to Express Homes, Inc. and its employees and agents as “we” or “us” or “Express Modular.” References herein to the Express Modular web site include any and all web sites now, or hereafter, owned or operated by Express Modular.
I. What We Agree to Regarding Leads.
a. Express Modular receives requests from its customers (“customers”) for certain services. In turn, Express Modular may send you a communication about such customer’s expressed service request need (a “Lead”). We may also send your contact information to the customer. The information we provide about you will be based on the information you submit during the Company Profile Interview (which you may amend from time to time) and Customer Ratings & Reviews, and may be amended by Express Modular from time to time. Leads may also be sent to other member service professionals based on the category of the customer request.
b. We have different tiers of Service Professionals so that you can distinguish your business, including Express Modular “Member” and Express Modular “Certified”, which is a Member that has received sufficient positive Customer Ratings & Reviews, and has met certain other criteria specified by Express Modular.
c. We limit the number of Service Professionals that are displayed to a customer. We do not guarantee to provide you any specific number of Leads, nor do we make guarantees, representations or warranties regarding a customer’s level of interest, their desire to have work completed, their ability to pay you, the accuracy of the information provided by the customers, or that any customers will hire you to perform services, nor do we guarantee that you will successfully contact each customer. We are not involved in, nor do we have any responsibility for your contracts with customers, their creditworthiness, or any payments to you or any disputes they may have with you or you may have with them. Express Modular is free to contract with other Service Professionals as this is not an exclusive contract.
d. We provide customers with the ability to rate their experience working with you via Customer Ratings & Reviews.
e. For Service Professionals using Express Modular’s Exact Match Services (not available in Canada), Express Modular shall endeavor to generate click-throughs to the SP’s online profile page and calls to the Exact Match Numbers (defined below), based upon the profile information supplied by SP. Express Modular shall provide for the hosting of the SP online profile page, however, SP is solely responsible for all content provided by SP that appears on SP’s online profile page. Express Modular shall provide the telephone numbers unique to SP’s online profile page (“Exact Match Numbers”). In addition, consumers will be able to complete a service request on the SP online profile page. A submission of a service request by a consumer on SP’s online profile page, or via a telephone call to SP’s Exact Match Number shall constitute an “Exact Match Lead.”
- What You Agree.
You agree to all terms and conditions of this Agreement and represent, on behalf of you, your company (including any predecessor entities of your company), employees, and any individuals performing work on your behalf, as follows:
a.You are qualified and capable of performing the services, trade, or tasks you selected on the Service Professional Enrollment Form or during your Company Profile Interview, and any subsequent amendments you make to your Customer Profile.
b. You are, and at all times will be, properly and fully licensed*, bonded and insured (at levels in accordance with applicable industry standards) under all applicable laws and trade regulations (and upon request will produce documentation to verify this), and further, that you have not been turned down for insurance coverage related to your provision of services. You will notify us promptly of any such changes to your licensing, bonding or insured status.
*If you or your company are operating under a license with special restrictions you agree and represent that you will at all times operate within the guidelines as specified by such restrictions.
c. You will comply with the Express Modular membership requirements as specified from time to time, including any required insurance coverage. If these requirements are amended, you will be advised and provided the opportunity for a reasonable period of time as designated by Express Modular to comply with any changes.
d. You hereby represent that you, any predecessor entities of your company, any other majority shareholders, partners or members, and your company, are free from any (i) bankruptcies, civil legal judgments within the last 3 years, and (ii) felony criminal convictions, OR you have provided Express Modular with an accurate and truthful written statement detailing any exceptions. If at any time during your membership with Express Modular you, any predecessor entities of your company, any other majority shareholders, partners or members or your company, should file for bankruptcy or be involved in bankruptcy proceedings, have a civil legal judgment entered against such party or a felony conviction entered against such party, you will promptly notify Express Modular. You further represent that you have not been sanctioned or penalized by any governmental authorities in connection with your provision of services to any of your customers, and that you have not been denied membership to (or had your membership revoked from) any professional industry associations. You authorize Express Modular to verify that all of the above representations are truthful and accurate at any time while this Agreement remains in effect.
e. You agree to abide by and to follow the terms of the Express Modular Performance Pledge, Code of Ethics and the Resolution Process, each as amended from time to time and appearing on our Website. You will cooperate with us if we attempt to facilitate the resolution of any customer complaints between you and your customers; however we are not liable to you or any customer if such matters cannot be resolved. We reserve the right to charge you for any amounts paid to a customer pursuant to our limited service guarantee (the terms of which may be found in our Resolution Process), or based upon your performance of or failure to perform services for a customer, and you agree to reimburse us for any such payments. You agree that we shall have the right to disclose any information we have regarding you and your company to any authorities requesting information from us regarding any work or services you have performed.
f. If you provide any quotes to consumers via the Express Modular website, such quotes are provided for informational purposes only. A consumer cannot contract with you via the Express Modular website. In the event a consumer selects you on our website in response to a quote you provide (or schedules and appointment), such selection (or appointment) is merely an indication of the consumer’s interest in contacting or being contacted by you.If you provide written comments or testimonials about our service or activities, you agree that we shall have sole ownership of any and all intellectual property rights in such comments or testimonials, and that we may post and publish your comments or portions thereof at our sole discretion on our Website or in marketing materials including your name and company or agency, and that you shall not be entitled to any payments associated with our use of the foregoing. You hereby authorize us to use your name, company name, and franchise name, as applicable, and any of the trademarks, service marks, trade names and logos, content including photographs, in the form or format that you supply to us or that you upload to our Website, for use and posting on our Website and for use in marketing materials to be presented to customers in online postings, via emails or otherwise to help promote you or your services, and that you shall not be entitled to any payments associated with our use of the foregoing. Express Modular reserves the right, in its sole discretion, to review, reject and remove any content that you upload to the Express Modular Website or your company profile. You further represent that you have all necessary rights to display any of the logos, service marks, trademarks, and any other content that you upload to our Website, and you represent that your uploading for display of any such content, and the use by Express Modular of such content as contemplated by this Agreement, shall not violate any third party’s intellectual property rights. If there are any limitations or restrictions pertaining to the use or presentation of such logos, trade or service marks, it shall be your responsibility to provide us in writing with any such restrictions or limitations of use. If expressly authorized by us in writing in advance, you may be authorized during the term of this Agreement to use certain marks of Express Modular as necessary to promote your business. You are expressly prohibited from registering any trademarks or domain names of Express Modular.
g. You acknowledge and agree that all of the content and information posted on the Express Modular Website, including but not limited to Service Professional profiles, screening information, and Customer Ratings & Reviews for all Express Modular Service Professional members (excluding any logos or trademarked materials, or other intellectual property of Service Professionals provided by Service Professionals), is the sole and exclusive property of Express Modular. You acknowledge and agree that you have no right to reproduce, post, publish, display or otherwise use any Customer Ratings & Reviews (including those relating to you and your business), or any other content posted on the Express Modular Website, other than content provided directly by you. You acknowledge that a violation of the foregoing could result in significant damages, and you agree that you are liable to Express Modular for any such damages, and will indemnify Express Modular in the event of any third party claims against Express Modular based on or arising from your violation of the foregoing. You acknowledge and agree that Express Modular has the right, in its sole discretion, to contact customers about services you provide to gain their feedback and rating of you, and to display such Customer Ratings and Reviews on our Website. Express Modular is not responsible or liable to you for any comments, ratings or communications of any kind from customers that we choose to post on our Website.
h. You will not engage in any illegal acts or acts of wrongdoing, dishonesty or unethical business practices with Express Modular, any customer or other third party, including, but not limited to, (i) incorporating any fee in a customer’s bill for any fees paid to Express Modular, (ii) charging Express Modular customers any more than your other customers, or (iii) disclosing any user personal information to any third party. You will at all times be in full compliance with all applicable Federal, State, Provincial, local and other laws and regulations that apply to your activities. YOU ACKNOWLEDGE AND AGREE THAT TO KNOWINGLY SHARE, DISTRIBUTE, TRANSFER, OR SELL A Express Modular SERVICE REQUEST, OR LEAD (OR THE INFORMATION CONTAINED THERIN) OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IS A VERY SERIOUS BREACH OF CONTRACT AND FRAUDULENT MATTER THAT COULD RESULT IN INVASION OF PRIVACY RIGHTS OF OTHERS, SIGNIFICANT COSTS AND DAMAGES TO OTHERS AND TO Express Modular AND OTHER SERVICE PROFESSIONAL PARTNERS. RESPONDING TO SUCH A VIOLATION WOULD ALSO RESULT IN THE LOSS OF TIME, EFFORT ON THE PART OF Express Modular. THERE ALSO MAY BE REGULATORY FINES AND PENALTIES IMPOSED FOR CONTACTING CONSUMERS AND BUSINESSES IN A MANNER NOT IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS INCLUDING BUT NOT LIMITED TO FEDERAL STATE AND PROVINCIAL DO-NOT-CALL REGULATIONS AND FEDERAL STATE AND PROVINCIAL ANTI-SPAM REGULATIONS. ACCORDINGLY, IF YOU KNOWINGLY SHARE, DISTRIBUTE, TRANSFER, OR SELL A SERVICE REQUEST, OR LEAD (OR THE INFORMATION CONTAINED THEREIN) OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU AGREE TO FULLY INDEMNIFY AND BE LIABLE TO Express Modular, AS SET FORTH IN SECTION IV BELOW, FOR ALL THE DAMAGES, WHETHER DIRECT OR INDIRECT, PUNITIVE AND CONSEQUENTIAL, AND ANY REGULATORY OR JUDICIAL FINES OR PENALTIES THAT MAY ARISE FROM SUCH ACTIVITIES.
i. You agree to allow only employees of your company or independent contractors performing services directly on behalf of your business to contact or provide any service to customers you learn of via a Lead. To the extent you use any such subcontractors, you shall be responsible and liable for all acts and omissions of such subcontractors and for ensuring that such subcontractors comply with all the provisions of Section II of this Agreement. You agree not to sell, trade, gift, assign, or otherwise transfer any Service Requests, or Leads provided by Express Modular to any other party, including any other Express Modular Service Professionals.
j. Manager Accounts (if applicable): If you elect, and are eligible, to become a Manager Account, and you meet the applicable Express Modular requirements, you may assign a Service Request, or Lead (that you do not personally take and contact) to ONLY ONE SINGLE pre-designated employee or agent such as a sub-contractor or agent working under your direct supervision (a “Sub-Account Agent”), which Sub-Account Agent must be registered and approved as a service professional in our system prior to being eligible to receive any Service Requests, or Leads. You may assign a Lead to only one Sub-Account Agent, such that only one of your Sub-Account Agents (and not you, except for the sole purpose of introducing the Sub-Account Agent to the customer) will ever contact the customer relating to such Lead. You, as Manager, are not allowed to contact a Lead and then transfer the Lead to a Sub-Account Agent, or transfer the Lead to a Sub-Account Agent and then separately contact the Lead (for example to re-pitch, retrieve or try to salvage the customer). Any Sub-Account agent that receives a Lead from a Manager Account may not transfer, sell, share or distribute such Lead in any way to any other parties whatsoever, including but not limited to office-mates or any other Sub-Account agents working with for the same or other Manager Accounts, or back to the Manager Account (and you, as Manager, agree to insure that Sub-Account Agents comply with this restriction). You hereby acknowledge and agree that you are liable for all of the actions, and failures to act, of your Sub-Account Agents, including any misuse by your Sub-Account Agents of a Lead (i.e. sale, unauthorized transfer, exchange, disclosure of confidential user information to a third party), and any breach of this Agreement by your Sub-Account Agents shall entitle us, in addition to our right to terminate this Agreement and any of your Sub-Agent Accounts, to seek damages (including without limitation any attorney’s fees, court costs, expenses, and interest) from you, including but not limited to injunctive relief and any damages incurred due to any breach of a customer’s privacy. In addition, your indemnification obligations under this Agreement apply to the acts, or failures to act, of your Sub-Account Agents, as if such acts, or failures to act, had been committed by you.
k. In addition to all of the other terms and conditions herein, SPs using Express Modular’s Exact Match services (not available in Canada) also agree to the following: (i) SP hereby represents and warrants that the information provided by SP in the SP profile on the SP’s online profile page is, and shall at all times be, maintained in an accurate, up-to-date and professional manner, and in compliance with all applicable laws and regulations; (ii) SP hereby agrees that it hereby has automatically pre-accepted any Exact Match Leads provided to it by Express Modular; (iii) SP hereby agrees to pay for any and all Exact Match Leads, in accordance with the then current Express Modular fee schedule; (iv) Express Modular may provide SP’s phone number to any individual calling the Exact Match Numbers; (v) SP acknowledges and agrees that not all consumers calling the SP’s Exact Match Number or visiting the SP’s online profile page will be directed to SP for reasons including, but not limited to the Exact Match consumer’s request not matching the SP’s profile, SP’s account being on hold or no longer being a member of the Express Modular network, or the SP not having any available spend target. In such event, Express Modular may direct consumers from the SP’s online profile page to the Express Modular website; (vi) SP hereby authorizes Express Modular to take any and all actions necessary to generate click-throughs to SP’s online profile page and telephone calls to Exact Match Numbers, including contracting with search engines, Internet directories, and other online and offline advertising sources and making the representations herein on behalf of SP to such third parties, and (vii) SP authorizes Express Modular to use, copy, reproduce, and sublicense SP’s contact information, SP’s profile, and any content on the SP’s online profile page in furtherance of the foregoing.
- Indemnification; Limitation of Liability; Disclaimer of Warranties.
a.Indemnification. You shall fully protect, indemnify and defend Express Modular and all of its agents, officers, directors, shareholders, suppliers, partners, employees and each of their successors and assigns (“Indemnified Parties”) and hold each of them harmless from and against any and all claims, demands, liens, damages, causes of action, liabilities of any and every nature whatsoever, including but not limited to personal injury, intellectual property infringement, fraud, deceptive advertising, violation of any state, provincial or federal laws or regulations, property damage, attorneys’ fees and court costs, arising in any manner, directly or indirectly, out of or in connection with or in the course of or incidental to any of your work for or dealings with any customers, or your services, representations, advertising, or obligations (including but not limited to your obligation to maintain the confidentiality of user personal information) as provided in this Agreement, including any extra work, and in connection with your use of the Express Modular Seal of Approval, REGARDLESS OF CAUSE OR OF ANY FAULT OR NEGLIGENCE OF Express Modular OR THE INDEMNIFIED PARTIES AND WITHOUT REGARD TO CAUSE OR TO ANY CONCURRENT OR CONTRIBUTING FAULT, STRICT LIABILITY OR NEGLIGENCE, WHETHER SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE BY Express Modular OR THE INDEMNIFIED PARTIES.
b. Limitation of Liability. IN NO EVENT ARE WE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, LOST REVENUE, LOST PROFITS OR LOSS OF GOODWILL. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF Express Modular TO YOU EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO Express Modular DURING THE PRECEEDING 12 MONTHS, REGARDLESS OF THE BASIS OR FORM OF CLAIM.
c. Disclaimer ofWarranties. YOU ACKNOWLEDGE AND AGREE THAT THE Express Modular SERVICES AND Express Modular SEAL OF APPROVAL ARE PROVIDED TO YOU ON AN “AS IS” BASIS, AND Express Modular DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Other Terms.
a.This Agreement, and the Express Modular Fee Schedule, may be changed from time to time and you agree to be bound by any changes that are posted on the Express Modular Website or which are otherwise communicated to you; the current applicable Agreement and Express Modular Fee Schedule is available upon request.
b. You may terminate this Agreement upon our receipt of your written notice during normal business hours (such termination to be effective upon the close of business on the day properly delivered and received), but you shall be obligated to pay for any Leads or services delivered to you prior to us receiving your termination during normal business hours.
c. Express Modular, in its sole discretion, reserves the right to suspend your rights under this Agreement or terminate this Agreement and your membership in the Express Modular network immediately at any time for any reason or no reason at all.
d. If this Agreement is terminated or expires, your agreements and obligations under this Agreement shall continue with respect to Sections I (d) ; II; III (d), (e), (g) and (h); V; VI (b), (d), (e), (f), (g), (h) and (i); and VII, and any Leads provided to you during the term of this Agreement and relationships you enter into or create from those Leads will continue to be governed by this Agreement including but not limited to with respect to any disputes that may arise or claims that may be made against us and any indemnification of us by you for such claims. Further, in the event this Agreement is terminated or expires, (i) the license granted in Section IV(a) above shall immediately terminate, and you shall have no further right to access, use or display the Express Modular Seal of Approval in any manner, and (ii) you agree to destroy any materials containing the Express Modular Seal of Approval.
e. If it is determined or suspected by Express Modular in its sole discretion that you are misusing or attempting to misuse or circumvent the Express Modular services or system or any customer data, or are using or attempting to use it for any inappropriate, illegal, harmful, or anti-competitive, purposes, including but not limited to activities such as hacking, infiltrating, fraud, advertising, jamming or spamming, or any activities inconsistent with the services proposed to be offered by Express Modular, in addition to our right to immediately terminate this Agreement, Express Modular reserves the right, in its sole discretion, to instigate, without notice, appropriate legal actions or proceedings to seek appropriate remedies and/or damages, including but not limited to lost revenue, repairs, legal fees, costs and expenses, and to seek injunctions or other equitable remedies.
f. In the event of termination of this Agreement, you shall not be entitled to any refund of any fees paid to us, including any prepayments.
g. You will be liable for any attorneys’ fees and costs if we have to take any legal action (including the retention of a lawyer) to enforce this Agreement. The laws of the State of West Virginia (excluding the laws and principles with respect to conflicts of law) govern this Agreement. You hereby consent and agree that the state or federal courts in Martinsburg, West Virginia are the exclusive forum for litigation of any claim by you arising under this Agreement, and you submit to sole and exclusive jurisdiction in the state of West Virginia, and hereby irrevocably waive and relinquish any right to bring, or cause to be brought, any such action, or to have any such action brought, in any judicial or administrative forum outside of such forum.
h. The relationship between Express Modular and you shall be that of independent contractors and neither party shall be or represent itself to be an agent, employee, partner or joint venture of the other, nor shall either party have or represent itself to have any power or authority to act for, bind or commit the other.
i. If any provision of this Agreement is held by any court or other authority of competent jurisdiction to be invalid, illegal or in conflict with any applicable state or federal law or regulation, such law or regulation shall control, to the extent of such conflict, without affecting the remainder of this Agreement.
- Before or at the time of collecting personal information, we will identify the purposes for which information is being collected.
- We will collect and use of personal information solely with the objective of fulfilling those purposes specified by us and for other compatible purposes, unless we obtain the consent of the individual concerned or as required by law.
- We will only retain personal information as long as necessary for the fulfillment of those purposes.
- We will collect personal information by lawful and fair means and, where appropriate, with the knowledge or consent of the individual concerned.
- Personal data should be relevant to the purposes for which it is to be used, and, to the extent necessary for those purposes, should be accurate, complete, and up-to-date.
- We will protect personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.
- We will make readily available to customers information about our policies and practices relating to the management of personal information.
We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.