TERMS AND CONDITIONS
The Terms and Conditions (“Agreement”) is made as of date entered by Funeral Professional (“Effective Date”) by and between The Heritage Companies LLC, D/b/a DirectorResources.com, MemorialFunding.org, (“Director Resources”) a Connecticut Limited Liability Company with its address of P.O. Box 7263 Berlin, Connecticut 06037 and the Funeral Professional as noted above with its principal places of business as noted above (Funeral Professional”).
Whereas, Director Resources (“DR”) operates a cash flow management consultancy and online suite of services through the Director Resources and Memorial Funding Websites (and others) where families being served can use as a conduit, to request and obtain personal unsecured loans from our lending panel for funeral / memorial services; as well as other products and services for the funeral professional such as merchant services, factoring, and Memorial Keepsakes.
Whereas, Funeral Professional operates and maintains a duly licensed business(s) / facility(s) in the state where said business are located.
Whereas, Funeral Professional and Director Resources each believe it would be beneficial to its business to promote the Director Resources suite of service options to potential Funeral Professional families being served upon the terms set forth herein.
Now, Therefore, in consideration of the mutual covenants set forth herein, Director Resources and Funeral Professional hereby agree to the following terms and conditions:
General. Funeral Professional is hereby granted a license to offer the DR Services, via in-person and online through the Funeral Professional's Computer. Funeral Professional may provide Promotional Materials which describe DR Services to potential Funeral Professional Customers. Potential Funeral Professional Customers will be directed to the Director Resources Services through the Director Resources Website(s). Funeral Professional shall allow potential Funeral Professional Customers to have unrestricted access to DR Services. Funeral Professional agrees not to impose any fees or charges on potential Funeral Professional Customers for access to DR Services. Funeral Professional acknowledges that Funeral Professional does not have authority to make or accept any offers or make any representations on behalf of Director Resources or regarding Director Resources Services.
Promotional Materials. Funeral Professional, its employees and agents shall display Promotional Materials only as set forth in this Agreement. All Promotional Materials must be approved by Director Resources in writing in advance of any use. Funeral Professional acknowledges and agrees that Director Resources may require changes to Promotional Materials at any time upon notice to Funeral Professional. Funeral Professional will replace all Promotional Materials with updated Promotional Materials within seven (7) business days’ written notice (email acceptable). Notwithstanding the foregoing, if Director Resources’ banking partners imposes a higher standard on Director Resources for any change to Promotional Materials, Funeral Professional shall be obligated to satisfy such higher standard. Funeral Professional shall ensure that all use of Promotional Materials shall be accurate and not misleading in all material respects. Funeral Professional’s failure to obtain Director Resources’ approval as required by this Section 2.2 shall constitute a material breach of this Agreement.
Director Resources Pages. Director Resources will be solely responsible for all aspects of the Director Resources Website showing the Director Resources Product, including without limitation, customer service functions and all other matters related to the Director Resources Product.
Additional Services. No additional services, customer support, or customization, except as otherwise expressly described in this Agreement, will be provided by Director Resources unless the parties agree to the additional terms and conditions for such services.
Confidential Information. Each party and its affiliates, directors, officers, employees, authorized representatives, agents and advisors (including without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other party's proprietary business procedures, products, services, operations, marketing materials, fees, policies or plans and all Nonpublic Personal Information of the other party that is received or obtained during the negotiation or performance of the Agreement, whether such information is oral or written, and whether or not labeled as confidential by such party (collectively “Confidential Information”). “Nonpublic Personal Information” shall include all personally identifiable financial information and any list, description or other grouping of families being served, and publicly available information pertaining to them, that is derived using any personally identifiable financial information that is not publicly available, and shall further include all “nonpublic personal information” as defined by federal regulations implementing the Gramm-Leach-Bliley Act, as amended from time to time. “Personally identifiable financial information” means any information a consumer provides to a party in order to obtain a financial product or service, any information a party otherwise obtains about a consumer in connection with providing a financial product or service to that consumer, and any information about a consumer resulting from any transaction involving a financial product or service between a party and a consumer. Personally identifiable information may include, without limitation, a consumer's first and last name, physical address, zip code, email address, phone number, social security number, birth date, and any other information that itself identifies or when tied to the above information, may identify a consumer.
Use of Confidential Information. For as long as Confidential Information is in possession of a party, such party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplications or disclosure of Confidential Information, other than, by or to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, or except as required by law or by a supervising regulatory agency of a receiving party. Neither party shall disclose, share, rent, sell or transfer to any third party any Confidential Information. The parties shall use Confidential Information only as necessary to perform this Agreement. Each party shall treat any Nonpublic Personal Information that it receives from the other party in a manner that is fully compliant with the disclosing party's obligations under Title V of the Gramm-Leach-Bliley Act and any implementing regulations thereunder, including but not limited to applicable limits on the use, disclosure, storage, safeguarding and destruction of Nonpublic Personal Information. In addition, any party receiving Nonpublic Personal Information shall maintain commercially reasonable data security and disaster recovery protections that at the least are consistent with industry standards for the consumer lending industry.
Return of Information, Indemnity. Upon the termination or expiration of this Agreement, the receiving party shall promptly return all Confidential Information received in connection with the transaction, or shall promptly destroy any materials containing such information (and any copies, extracts, and summaries thereof) and shall provide the disclosing party with written confirmation of such return or destruction upon request. In the event a party discovers that Confidential Information has been used in an unauthorized manner or disclosed in violation of this Section, the party discovering the unauthorized use or disclosure shall immediately notify the other party of such event, and the disclosing party shall indemnify and hold the other party harmless from all claims, damage, liability, costs and expenses (including court costs and reasonable and documented out-of-pocket attorney fees) arising or resulting from the unauthorized use or disclosure. In addition, the non-disclosing party shall be entitled to all other remedies available at law or equity, including injunctive relief. The provisions of this Section 4.3 shall survive termination of this Agreement.
Content and Trademark Licenses.
Trademark License by Director Resources. Subject to the terms and conditions of this Agreement, Director Resources hereby grants Funeral Professional a royalty-free, non-exclusive, non-transferable, non-sublicensable license during the Term to use Director Resources’ Marks solely to perform activities and obligations contemplated under this Agreement. Director Resources grants Funeral Professional no rights in or to any of its trademarks, service marks or trade names, other than the rights expressly granted in the foregoing sentences. Funeral Professional expressly acknowledges Director Resources’ sole and exclusive ownership of its trademarks and agrees not to take any action inconsistent with such ownership. Funeral Professional agrees further to take such additional actions, at Director Resources’ expense, as Director Resources deems reasonably necessary to establish and/or preserve Director Resources’ exclusive rights in and to its Marks. Funeral Professional agrees not to form any combination marks with Director Resources’ Marks, or adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to Director Resources’ trademarks. All uses by Funeral Professional of Director Resources’ Marks shall inure to the benefit of, and be on behalf of, Director Resources. Upon termination of this Agreement, Funeral Professional shall immediately cease to use any Promotional Materials, information, names, or Director Resources Marks and shall remove any Director Resources Marks from items and locations under its control.
Trademark License by Funeral Professional. Subject to the terms and conditions of this Agreement, Funeral Professional hereby grants Director Resources a royalty-free, non-exclusive, non-transferable, non-sublicensable license during the Term to use Funeral Professional’s Marks solely to perform activities and obligations contemplated under this Agreement. Funeral Professional grants Director Resources no rights in or to any of its trademarks, service marks or trade names, other than the rights expressly granted in the foregoing sentences. Director Resources expressly acknowledges Funeral Professional’s sole and exclusive ownership of its trademarks and agrees not to take any action inconsistent with such ownership. Director Resources agrees further to take such additional actions, at Funeral Professional’s expense, as Funeral Professional deems reasonably necessary to establish and/or preserve Funeral Professional’s exclusive rights in and to its Marks. Director Resources agrees not to form any combination marks with Funeral Professional’s Marks, or adopt, use or attempt to register any trademarks, service marks or trade names that are confusingly similar to Funeral Professional’s trademarks. All uses by Director Resources of Funeral Professional’s Marks shall inure to the benefit of, and be on behalf of, Funeral Professional. Upon termination of this Agreement, Director Resources shall immediately cease to use any Funeral Professional Marks and shall remove any Funeral Professional Marks from items and locations under its control.
Reservation of Rights. Each party shall continue to own all rights, title and interest in and to its patents, know-how, trade secrets, software, trademarks and all other intellectual property, subject only to the license rights expressly granted herein.
Term and Renewal.
The Agreement will become effective as of the Effective Date and remain effective unless and until either party terminates this Agreement (the “Term”). After ninety (90) either party may terminate this Agreement, with or without cause, by providing no less than thirty (30) days prior written notice. Either party may terminate this Agreement immediately and without notice if the other party has materially breached the Agreement. The termination of this Agreement shall not terminate those obligations that are expressly indicated to survive termination.
Enrollment. Funeral Professional will pay Director Resources an enrollment fee in the amount of $0.00. for each location unless otherwise negotiated. Director Resources will provide all materials, signs, brochures, electronic training of the use of the online services for all Funeral Professionals Arranging Directors.
Monthly Licensing. Funeral Professional will pay Director Resources a monthly licensing fee of $49.95 per month per location which will entitle Arranging Directors access to all modules of the online system. Note the Licensing Fee may be adjusted per agreement and noted via separate notice.
Billing and Payment. All fees will be charged to Funeral Professional's authorized credit card. Enrollment fee is due at execution of this agreement. Licensing fee will be charged once per month. Notwithstanding the foregoing, Funeral Professional shall not be required to pay any amount reasonably in dispute, provided that Funeral Professional promptly notifies Director Resources in writing of the amount in dispute and the reasonable basis, therefore. The parties will investigate and resolve any dispute in a timely and reasonable manner.
Records. Each party will maintain accurate and complete records of all information necessary to determine each party’s compliance with this Agreement.
Representations and Warranties.
Each party represents and warrants as follows:
It has full power and authority to enter into this Agreement, to perform all its obligations hereunder, and its entry into this Agreement does not violate any other agreement, understanding or arrangement by which it is bound.
Its performance of its obligations under this Agreement shall at all times comply with all applicable laws, rules and regulations that apply to the performance of its obligations under the Agreement.
Its websites and services, including its collection and use of Nonpublic Personal Information, will comply with all applicable laws, rules, and regulations.
It has acquired and shall maintain throughout the Term all rights and licenses necessary in connection with the performance of its obligations hereunder.
Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE DIRECTOR RESOUCES AND RELATED WEBSITES IS PROVIDED FOR USE “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, DIRECTOR RESOURCES DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnification by Director Resources. Director Resources shall indemnify, defend and hold Funeral Professional harmless from and against any Claim that is attributable to or arises from (i) Director Resources violation of any state or Federal law, rule or regulation, or any other illegal or actionable act or omission by or on behalf of Director Resources; (ii) Director Resources’ breach of any material obligation, representation or warranty in this Agreement; and (iii) Director Resources’ infringement of any intellectual property rights, contracts rights or tort rights (including the right of publicity or right of privacy) of any third party. Director Resources agrees to promptly pay and fully satisfy any and all Losses, judgments or expenses, including, without limitation, costs of settlement and attorneys’ fees incurred or sustained, or reasonably likely to be incurred or sustained by Funeral Professional as a result of any Claims of the types described in this Section 11.1.
Indemnification by Funeral Professional. Funeral Professional shall indemnify, defend and hold Director Resources harmless from and against all losses, costs, damages, and expenses, including reasonable attorney’s fees, at any time incurred by Director Resources arising out of (i) Funeral Professional’s violation of any state or Federal law, rule or regulation, or any other illegal or actionable act or omission by or on behalf of Funeral Professional; (ii) Funeral Professional’s breach of any material obligation, representation or warranty in this Agreement; and (iii) any acts or omissions by Funeral Professional, its employees or its agents, in connection with Funeral Professional’s marketing efforts. Funeral Professional agrees to promptly pay and fully satisfy any and all Losses, judgments or expenses, including, without limitation, reasonable and documented out-of-pocket costs of settlement and attorneys’ fees incurred or sustained, or reasonably likely to be incurred or sustained by Director Resources as a result of any Claims of the types described in this Section 11.2.
Procedures. The Indemnified Party shall: (i) promptly notify the Indemnifying Party in writing of any Losses for which the Indemnified Party seeks indemnification; (ii) provide reasonable cooperation to the Indemnifying Party and its legal representatives in the investigation of any matter which is the subject of indemnification; and (iii) permit the Indemnifying Party to have full control over the defense and settlement of any matter subject to indemnification; provided, however, that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interests without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnified Party shall have the right to participate in the defense at its expense.
Limitation on Liability. EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 4 (CUSTOMER PRIVACY AND CONFIDENTIALITY OF INFORMATION), 5 (REPORTING), 10 (DISCLAIMER) OR 11 (INDEMNIFICATION) AND A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOSS OF OR DAMAGE TO DATA.
Survival. The provisions of Sections 4 (Customer Privacy and Confidentiality of Information), 10 (Disclaimer), 11 (Indemnification), 12 (Limitation on Liability) and 13 (Miscellaneous) shall survive the expiration or earlier termination of this Agreement.
Public Statements. Neither party will make any announcements or statements to the public concerning the relationship between them or the transactions described herein without the prior written consent of the other party. Unless otherwise provided herein, neither party will use the other party’s name, trademark or logos without the prior written consent of the other party.
Governing Law. The parties agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut without regard to any conflict of law provisions. Should a dispute arise under or in relation to this Agreement, jurisdiction over and venue of any suit arising out of this Agreement shall be exclusively in the state and federal courts located in Hartford, Connecticut. If either party employs attorneys to enforce any right arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements or other communications between the parties with respect to the subject matter hereof.
Modification. This Agreement may not be modified except by a writing signed by an authorized signatory of each party. No waiver, modification or amendment of this Agreement shall be effective unless made in a writing signed by the party to be bound.
Independent Contractors. The parties are acting as independent contractors to each other under this Agreement, and nothing contained in this Agreement shall create or suggest any affiliation, association, partnership, agency or joint venture between the parties. Neither party shall represent itself or act as the associate, partner, agent or joint venture of the other party in any way whatsoever.
Assignment. Neither party shall assign any right or any obligation under this Agreement without the prior written consent of the other party, and any such attempted assignment shall be null and void, provided, however, that Director Resources may assign this Agreement without Funeral Professional’s consent in the event of a change in control of Director Resources. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Waiver. No waiver by either party or any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument.
Severability. If any provision of this Agreement shall be found by a court of competent jurisdiction to be invalid or unenforceable, such finding shall not affect the validity or enforceability of this Agreement as a whole or of any other provision of this Agreement.
Notices. All notices required or permitted under this Agreement must be in writing and shall be deemed effectively given: (i) upon delivery, when delivered personally against receipt therefor; (ii) upon delivery when sent by certified mail, postage prepaid and return receipt requested; (iii) upon transmission, when transmitted by facsimile or email, provided that receipt is confirmed and notice is also sent by U.S. mail, postage prepaid; (iv) upon delivery, when sent by Federal Express or other nationally recognized overnight delivery service; or (v) three days after deposit if by U.S. mail, postage prepaid. Any such notice shall be sent to the party to whom notice is intended to be given at its address as shown below:
Director Resources: P.O. Box 7263 Berlin, CT 06037
Email: info@Director Resources.com
Attention: General Counsel
Funeral Professional: Name and email address noted in application.
Force Majeure. Neither party shall be liable to the other for any default or delay in performance of any of its obligations under this Agreement to the extent that such default or delay is caused, directly or indirectly, by an event beyond such party’s reasonable control, including without limitation, fire, flood, earthquake or other acts of God; wars, rebellions or revolution; acts of terrorism; riots or civil disorders; accidents or unavoidable casualties; interruptions in transportation, communications or power facilities; or changes in law, treaties, rulings, regulations, decisions or requirements of any governmental, administrative or regulatory agency.
The Funeral Professional hereby agrees to the terms and conditions.