Deals
SERVICEMAGIC TERMS AND CONDITIONS
Welcome to ServiceMagic! This Agreement governs your relationship with ServiceMagic, 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 ServiceMagic, Inc. and its employees and agents as "we" or "us" or "ServiceMagic." References herein to the ServiceMagic web site include any and all web sites now, or hereafter, owned or operated by ServiceMagic.

I. What We Agree to Regarding Leads.
   a. ServiceMagic receives requests from its customers ("customers") for certain services. In turn, ServiceMagic 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 ServiceMagic 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 ServiceMagic "Member" and ServiceMagic "Certified", which is a Member that has received sufficient positive Customer Ratings & Reviews, and has met certain other criteria specified by ServiceMagic.
   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. ServiceMagic 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 ServiceMagic's Exact Match Services (not available in Canada), ServiceMagic 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. ServiceMagic 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. ServiceMagic 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."

II. 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 ServiceMagic 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 ServiceMagic 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 ServiceMagic with an accurate and truthful written statement detailing any exceptions. If at any time during your membership with ServiceMagic 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 ServiceMagic. 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 ServiceMagic 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 ServiceMagic 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 ServiceMagic website, such quotes are provided for informational purposes only. A consumer cannot contract with you via the ServiceMagic 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.  ServiceMagic reserves the right, in its sole discretion, to review, reject and remove any content that you upload to the ServiceMagic 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 ServiceMagic 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 ServiceMagic as necessary to promote your business. You are expressly prohibited from registering any trademarks or domain names of ServiceMagic.
   g. You acknowledge and agree that all of the content and information posted on the ServiceMagic Website, including but not limited to Service Professional profiles, screening information, and Customer Ratings & Reviews for all ServiceMagic 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 ServiceMagic. 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 ServiceMagic 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 ServiceMagic for any such damages, and will indemnify ServiceMagic in the event of any third party claims against ServiceMagic based on or arising from your violation of the foregoing. You acknowledge and agree that ServiceMagic 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. ServiceMagic 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 ServiceMagic, 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 ServiceMagic, (ii) charging ServiceMagic 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 SERVICEMAGIC 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 SERVICEMAGIC AND OTHER SERVICE PROFESSIONAL PARTNERS. RESPONDING TO SUCH A VIOLATION WOULD ALSO RESULT IN THE LOSS OF TIME, EFFORT ON THE PART OF SERVICEMAGIC. 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 SERVICEMAGIC, 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 ServiceMagic to any other party, including any other ServiceMagic Service Professionals.
   j. Manager Accounts (if applicable): If you elect, and are eligible, to become a Manager Account, and you meet the applicable ServiceMagic 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 ServiceMagic'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 ServiceMagic; (iii) SP hereby agrees to pay for any and all Exact Match Leads, in accordance with the then current ServiceMagic fee schedule; (iv) ServiceMagic 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 ServiceMagic network, or the SP not having any available spend target. In such event, ServiceMagic may direct consumers from the SP's online profile page to the ServiceMagic website; (vi) SP hereby authorizes ServiceMagic 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 ServiceMagic 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.

III. Fees.
   a. You agree to be bound by the then applicable pricing plan provisions (all fees are stated and payable in US dollars) for any and all Leads presented to you (as further described in Attachment A for lead purchasing service professionals). You will pay ServiceMagic applicable non-refundable fees which may include: (i) an Enrollment/Screening Fee; (ii) Lead Fees, as set forth in the Lead Fee Schedule, for customer Leads accepted by you; (iii) ServiceMagic Seal of Approval License Fees at the then current standard Seal of Approval license fee rates, (iv) Membership Fees; (v) Administrative Fees; (vi) Website development and hosting fees, if you have elected to have ServiceMagic develop and host your company Website; and (vii) any other applicable fees such as Custom URL Fees or e-mail account fees as applicable. Our billing period runs weekly from Wednesday through the following Tuesday. You agree that payment will be made by ServiceMagic initiating an ACH transfer or processing your credit card (for Canadian SP's, credit card only) each Friday for the previous week’s activity. You may view a statement of your monthly lead activity on your ServiceMagic account, at pros.servicemagic.com. We may, in our sole discretion, issue you a credit ("Credit"), provided, however, that any and all Credits must be requested by you within 30 days of the date that the charge was incurred. Credits that are issued to a Service Professional's account will be issued as store credits, which will be applied toward future charges to your account. Credits will expire, if not used, six months after the date the Credit was issued. For service professionals not purchasing leads, the only fees due shall be ServiceMagic Seal of Approval License Fees. You shall pay such fees on a monthly or annual basis, as selected by you. You agree that payments will be made by ServiceMagic initiating an ACH transfer or processing your credit card, in advance, on a monthly or annual basis, as applicable. For service professional purchasing leads, the ServiceMagic Seal of Approval License Fees will not be applicable. No previously paid ServiceMagic Seal of Approval License Fees will be refunded upon a non-lead purchasing service professional becoming a lead-purchasing service professional.
   b. You acknowledge that it is your responsibility to ensure that the communication methods that you have selected in your ServiceMagic profile are kept up-to-date and accurate. ServiceMagic is not responsible, or liable, for undelivered customer notifications.
   c. ServiceMagic reserves the right, at its sole discretion, to provide periodic discounts and incentive programs to you and/or other Service Professionals.
   d. You acknowledge that you will not receive a detailed account statement unless you provide ServiceMagic with a valid email address or fax number. Your account balance is also available by calling (877) 947-3676 or via the ServiceMagic Website. ServiceMagic will process your balance due at the end of your billing period via your selected payment method. Past due balances will be subject to a late charge equal to the lesser of 1.5% per month or the maximum amount allowed by applicable law. In addition, any returned payments will incur a $20 fee per transaction.
   e. Past due accounts may be turned over to a third-party collection agency and reported to a credit rating agency and we may bill you for, and you agree to pay for any and all collection and related litigation fees.
   f. All Lead Fees constitute advertising fees paid by you to ServiceMagic and are in no way, referral commissions based upon your successful completion of services.
   g. No fee is due or payable to the extent such fee is in violation of any applicable law.
   h. ServiceMagic is not obligated to refund to you any amounts of prepaid Lead Fees or other prepaid fees for which services have not been rendered to you by ServiceMagic.

IV. ServiceMagic Seal of Approval.
   a. License. While this Agreement remains in effect, and while you remain in full compliance with all terms set forth herein, ServiceMagic hereby grants you a non-exclusive, non-transferrable, non-sublicenseable, license to use and display the ServiceMagic Seal of Approval in connection with marketing your business. You agree that any use or display of the ServiceMagic Seal of Approval must comply with all standards and guidelines of ServiceMagic adopted from time to time with respect to the proper use and display of the ServiceMagic Seal of Approval.

   b. Restrictions. You may only use the ServiceMagic Seal of Approval in the event you pass ServiceMagic's pre-screening criteria initially and annually thereafter, which shall be determined in ServiceMagic's sole discretion. ServiceMagic may also re-screen your business at any time in its sole discretion, and may terminate this Agreement in ServiceMagic's sole discretion. Further, you agree that you will use and display the ServiceMagic Seal of Approval solely in connection with the tasks for which ServiceMagic pre-screens you. For example, if you are pre-screened as a plumber, you may not use the ServiceMagic Seal of Approval to advertise your business for any services other than plumbing services. Further, you may only use the ServiceMagic Seal of Approval in the state or states for which you have been pre-screened by ServiceMagic. You may only use the ServiceMagic Seal of Approval for its intended use, and you may not misrepresent ServiceMagic, ServiceMagic's products or Services, your affiliation with ServiceMagic, or the ServiceMagic Seal of Approval. If at any time any of your screening status should change (i.e. state-level license terminated; fall out of good standing in your state of incorporation), you must immediately report such change to ServiceMagic, and if such change causes your business to fail ServiceMagic's screening criteria, in ServiceMagic's sole discretion, then your license to use the ServiceMagic Seal of Approval is immediately suspended, and if not remedied to ServiceMagic's satisfaction within thirty days of notification, this Agreement shall automatically terminate. You also hereby agree to be re-screened by ServiceMagic annually, and at any other time as desired by ServiceMagic, and failure to allow such rescreening, or failing the re-screening, in ServiceMagic's sole discretion, shall result in the immediate and automatic termination of this Agreement. The license granted hereunder is solely for the use of the ServiceMagic Seal of Approval, and you do not have any right to use the ServiceMagic name or logo separately or apart from the ServiceMagic Seal of Approval.

   c. Accessing the ServiceMagic Seal of Approval. You agree that you shall access the ServiceMagic Seal of Approval solely via the following methods: (a) via a code snippet provided to you by ServiceMagic for use online on your website, (b) via the ServiceMagic Online Store, to order offline products containing the ServiceMagic Seal of Approval, or (c) any other method generally offered by ServiceMagic. You may not make any changes or modifications to the ServiceMagic Seal of Approval, and shall only use the ServiceMagic Seal of Approval in the exact form and format in which it is provided to you by ServiceMagic.

V. Indemnification; Limitation of Liability; Disclaimer of Warranties.
   a. Indemnification. You shall fully protect, indemnify and defend ServiceMagic 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 ServiceMagic Seal of Approval, REGARDLESS OF CAUSE OR OF ANY FAULT OR NEGLIGENCE OF SERVICEMAGIC 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 SERVICEMAGIC 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 SERVICEMAGIC TO YOU EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO SERVICEMAGIC DURING THE PRECEEDING 12 MONTHS, REGARDLESS OF THE BASIS OR FORM OF CLAIM.

   c. Disclaimer ofWarranties. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICEMAGIC SERVICES AND SERVICEMAGIC SEAL OF APPROVAL ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND SERVICEMAGIC 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.

VI. Other Terms.
   a. This Agreement, and the ServiceMagic Fee Schedule, may be changed from time to time and you agree to be bound by any changes that are posted on the ServiceMagic Website or which are otherwise communicated to you; the current applicable Agreement and ServiceMagic 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. ServiceMagic, in its sole discretion, reserves the right to suspend your rights under this Agreement or terminate this Agreement and your membership in the ServiceMagic 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 ServiceMagic Seal of Approval in any manner, and (ii) you agree to destroy any materials containing the ServiceMagic Seal of Approval.
   e. If it is determined or suspected by ServiceMagic in its sole discretion that you are misusing or attempting to misuse or circumvent the ServiceMagic 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 ServiceMagic, in addition to our right to immediately terminate this Agreement, ServiceMagic 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 Colorado (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 Denver Colorado 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 Colorado, 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 ServiceMagic 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.

   j. Wireless data usage is subject to the fees and terms of your wireless subscriber agreement or data service plan with your provider, and you may incur charges from your telephone service provider for text messages, phone calls, email communications and data transferred.

VII. Direct Match. If you participate in the Direct Match Program, you are also bound by the additional terms and conditions set forth in Attachment B.

ServiceMagic Terms & Conditions

Attachment A

Premier Pro Program

You will purchase Leads in a one-step auto-accept process: You determine the approximate amount you would like to spend on Leads during a rolling 30-day time period ("Spending Target") and we send Leads to you via the communication methods you have specified in your ServiceMagic profile that match the criteria established by you in your ServiceMagic profile (you can change your profile by contacting Customer Service during normal business hours to alter the types and locations of Leads you receive) up to your Spending Target while simultaneously presenting your ServiceMagic profile information to the customer. You may increase your Spending Target at any time on-line (or by calling customer service during business hours) effective upon confirmation by you, and you may decrease your Spending Target at any time, but if you decrease your Spending Target, you agree to, and are obligated to pay the amount accrued to your account up to the time you decrease your Spending Target. These Leads contain information provided by the customer regarding their service need as well as the customer's contact information allowing you to immediately contact the customer. You acknowledge and agree that ServiceMagic does not guarantee that we will deliver the requisite number of Leads to fulfill your Spending Target, nor will we be liable to you for any shortfall. You agree to pay for all Leads delivered under this Method One as properly specified by you in your ServiceMagic profile. Such Leads are deemed accepted upon delivery.

Attachment B

Direct Match Program Terms and Conditions

By Participating in the Direct Match Program, and/or by accepting any Direct Match Work Orders (defined below), you hereby agree to be bound by the following additional Direct Match Terms and Conditions with respect to the Direct Match Program. In the event of any conflict between these terms and the terms set forth in the Agreement, these terms shall prevail.
  1. The Direct Match program allows Service Professionals to accept work requests that consumers have placed. Only one Service Professional will be allowed to accept each Work Order, which shall be at ServiceMagic's sole discretion.
  2. A "Work Order" is a consumer request for certain work to be performed ("Work"), which shall include specifics such as date and time the Work is to be performed ("Appointment Date"), address, and price to be paid to Service Professional ("DM Fee").
  3. You agree to comply with all terms, policies and procedures of the Direct Match Program as communicated by ServiceMagic from time to time. You acknowledge that ServiceMagic may change, modify or terminate the Direct Match Program at any time, in its sole discretion.
  4. By Accepting a Work Order (an "Accepted Work Order"), you are agreeing to perform the Work set forth therein, in accordance with the terms, and for the DM Fee set forth in the Accepted Work Order. You may propose an alternate price or Appointment Date (a "Counter Offer"), however, any Counter Offer may not be accepted, and another Service Provider may accept the Work Order in the interim.
  5. In the event of any problems or proposed deviations from the Accepted Work Order, including but not limited to, (i) requested changes or additional work by consumer, (ii) problems with the job site, (iii) consumer failing to be home, or (iv) Service Professional failing to show up for the scheduled appointment, you agree that you must immediately call the phone number set forth on the bottom of the work order to resolve any such issues.
  6. You agree that you MAY NOT (i) accept any payment from the consumer for undertaking or performing the Work, (ii) negotiate the Accepted Work Order, or any of the terms therein, or (iii) perform any additional work outside of the Accepted Work Order.
  7. You agree that you are liable and responsible for all acts and omissions in the course of your (or your employees, subcontractors or agents) performance of services for a consumer pursuant to an Accepted Work Order, and you agreed to indemnify, defend and hold ServiceMagic harmless from any claims brought by the consumer or any third party related to your acts or omissions (or those of your employees, subcontractors or agents).
  8. By accepting a Work Order, you are representing and warranting that:
    1. You (and any of your employees, subcontractors or agents performing work pursuant to an Accepted Work Order) are properly licensed, and have and will obtain any and all permits required or necessary for performing the Work.
    2. You will only perform the Work in the event the consumer is present at the Appointment Date (or an authorized representative of consumer who is at least 18 years of age)
    3. You shall perform the Work in a professional and workmanlike manner, in accordance with the terms of the Accepted Work Order, and in accordance with any applicable manufacturing specifications, and applicable laws, regulations, codes or other governmentally prescribed requirements.
  9. You will, at your sole cost and expense, repair any damage you cause and leave the consumer's premises in a clean condition, at least as clean as the premises was when you arrived to perform the work.
  10. In the event (i) you fail to show up to perform the Work on the Appointment Date, (ii) you fail to complete the Work, (iii) you cause any damage to consumer and do not repair such damage at your sole expense, or (iv) you fail to abide by the Warranty (as defined herein), then you agree that you are liable for any costs or expenses ServiceMagic incurs as a result of such failure, and that ServiceMagic may charge you for any such amounts in the next weekly billing cycle, and you hereby authorize ServiceMagic to charge you for such amounts.
  11. You agree that you may not transfer, sell, assign or otherwise convey any of your rights or obligations under a Work Order to any third party. Further you agree that you may not transfer, sell, assign or otherwise convey the consumer information to any third party, and that such information, communicated to you via the Work Order or otherwise, may be used by you solely for the purpose of carrying out your obligations to perform the Work.
  12. WARRANTY. You agree to warrant the Work for a period of two (2) years from the date of services and that you will correct any material defects in the workmanship of the Work ("Warranty"). The Warranty does not include a warranty of the products, parts or equipment used in the Work, provided, however, if you provide any products, parts or equipment as part of the Work, and such parts are defective, you shall be solely responsible for fixing or replacing such parts, at your sole cost and expense. The foregoing Warranty shall survive any termination or expiration of the Agreement.
  13. Work Order Completion; Payment.
    1. Upon your completion of the Work for an Accepted Work Order, you shall notify ServiceMagic of such completion via the methods communicated to you in the Work Order, or as communicated to you from ServiceMagic, from time to time.
    2. Once ServiceMagic has been notified by you of completion of Work for an Accepted Work Order ("Completion Notification Date"), such order shall become payable seventy-two (72) hours following the Completion Notification Date, unless the consumer has notified ServiceMagic that the work is not complete or is unsatisfactory. In such event, no amounts shall be due or payable to you, unless and until the Work is completed to the satisfaction of the consumer.
    3. Once an Accepted Work Order becomes due and payable, the DM Fee shall be paid via the normal billing cycle as set forth in the Agreement. Further, any such amounts due and payable to you shall be offset against any Lead Fees (and any other fees) due from you to ServiceMagic pursuant to the Agreement. If fees are due and payable from you for any weekly billing cycle, ServiceMagic shall charge you in accordance with the practices set forth in the Agreement. If fees are due and payable to you for any weekly billing cycle, you shall have the option of being paid such amounts, in a method and manner determined by ServiceMagic, or having such amounts applied to your future Lead Fee payments.
    4. You acknowledge and agree that a consumer may cancel an Accepted Work Order at any time, and in such event, no fees shall be due or payable to you for such Accepted Work Order.
    5. You acknowledge and agree that ServiceMagic does not screen consumers, and makes no representations or warranties of any kind with regard to the consumers. Further, you agree that ServiceMagic shall not be liable to you with respect to any claims, damages or losses incurred by you in connection with your performance of Work, or your dealings with any consumer.
    6. Any taxes associated with the payments you receive from ServiceMagic are your sole responsibility. ServiceMagic will provide you with a Form 1099 as required by U.S. tax law. You acknowledge that you, and your employees, subcontractors and agents are independent contractors, and are not employees of ServiceMagic, and that you are responsible and liable for all withholding obligations, and any other employer obligations required by applicable federal, state and local laws and regulations.
  14. You acknowledge and agree that ServiceMagic may terminate your participation in the Direct Match Program at any time, for any reason or no reason, in ServiceMagic's sole discretion. In the event that your participation in the Direct Match Program is terminated for any reason, you may not perform any Work with regard to any outstanding Accepted Work Orders, and you will not be due any DM Fees for such outstanding Accepted Work Orders. In the event your account status with ServiceMagic is placed "on hold", ServiceMagic may cancel any Accepted Work Orders, and refuse to provide you with additional Work Orders, while your account remains "on hold."
  15. You acknowledge and agree that ServiceMagic makes no representations or warranties regarding the Work Orders, the Work, the consumers, or that you will receive any Work Orders.
  16. You acknowledge and agree that as between you and ServiceMagic, ServiceMagic owns all consumer information provided to you in a Work Order or otherwise, and that you shall use such information solely for the purpose of carrying out your obligations in performing the Work. You agree that you may not market your services to any such consumers, or otherwise attempt to circumvent the Direct Match Program.
  17. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, and 17 of this Attachment B shall survive any termination or expiration of the Agreement and your participation in the Direct Match Program.
Attachment C

ServiceMagic Deals Terms and Conditions

By participating in ServiceMagic’s Deals Program (“ServiceMagic Deals”), you (the Service Professional) also agree to the following Terms and Conditions (“ServiceMagic Deals T&Cs”):
  1. ServiceMagic Deals is designed to help you book jobs (“Jobs”) within a geographically specific area. ServiceMagic shall determine the deal rate (“Deal Rate”) for particular tasks, in ServiceMagic’s sole discretion, and will market deals to consumers offering one level of discount off of the Deal Rate to consumers in the event a pre-determined number of hours (in ServiceMagic’s sole discretion) is booked (“Full Deal Hours”) with Jobs (defined below), or alternatively, a reduced level of discount off of the Deal Rate if less than the Full Deal Hours are booked. Therefore, if less than the Full Deal Hours is booked, you may be paid at a higher rate than if the Full Deal Hours are booked. ServiceMagic may, in its sole discretion, promote ServiceMagic Deals in any manner and by any method it deems reasonable.
  2. While ServiceMagic may attempt to book the Full Deal Hours, however, ServiceMagic does not guarantee that it will be able to do so, nor does ServiceMagic guarantee that consumers who book Jobs will not cancel such Jobs. ServiceMagic will notify you of the consumers who have booked Deals with ServiceMagic, by providing you with the consumers’ contact information and the number of hours booked (“ServiceMagic Deal Leads”).
  3. You agree to honor all booked Jobs, including any Jobs sold prior to any termination of your participation in the ServiceMagic network or ServiceMagic Deals (and any such services provided by you to the consumer will continue to be subject to these ServiceMagic Deals T&Cs). In the event you fail to honor a booked Job, you shall still be responsible for payment of the applicable ServiceMagic Deals Lead Fees (defined below), and ServiceMagic, in addition to any other remedies it may have, shall have the right to refer the consumer to another ServiceMagic service professional to honor such Job, and you shall not be entitled to any refund for any ServiceMagic Deals Lead Fees paid for such ServiceMagic Deals Leads.
  4. You agree that you shall be charged for ServiceMagic Deals Leads in the amount of fifteen percent (15%) of the amount ServiceMagic collects from consumers for ServiceMagic Deal Leads (“ServiceMagic Deals Lead Fees”). ServiceMagic Deals Lead Fees are non-refundable. Payment shall be processed as follows: ServiceMagic shall collect payment information from consumers upon the booking of a Job. ServiceMagic shall attempt to process payment from the applicable consumers to ServiceMagic. For all successful payments by consumers, ServiceMagic will charge you via your normal lead payment method, ACH transfer or your credit card on file with ServiceMagic, for the ServiceMagic Deals Lead Fees. For any consumers for which ServiceMagic is unable to process payment, we will notify you that such ServiceMagic Deal Lead is cancelled. Upon completion of services by you for booked Jobs, you must obtain the ServiceMagic Deals coupon code (“Coupon Code”) from the consumers. You may thereafter go to your ServiceMagic account online and enter the Coupon Code, or provide the Coupon Code to a ServiceMagic customer service representative on the telephone, and once entered or provided, ServiceMagic shall transfer the applicable consumer payments to your ServiceMagic account, less any other Market Match Lead Fees, Exact Match Lead Fees, or other fees owed to ServiceMagic at such time. In the event you do not obtain the Coupon from a consumer, ServiceMagic shall have the right to withhold payment to you, in ServiceMagic’s sole discretion, until it is satisfied that such payment should be transferred. ServiceMagic may also determine, in its sole discretion, that such payment will be returned to the consumer.
  5. Your spend targets for Market Match or Exact Match are separate and apart from your participation in ServiceMagic Deals, and any ServiceMagic Deals Leads charged to you shall not count against your Market Match or Exact Match spend targets. However, as noted above, if you have any outstanding Market Match or Exact Match Lead Fees owed to ServiceMagic, we may subtract these from the payment to you pursuant to Section 5 above.
  6. In addition to these ServiceMagic Deals T&Cs, you continue to also be bound by (and reaffirm your agreement to) the full ServiceMagic Terms & Conditions, of which these ServiceMagic Deals T&C’s are a part (“SM T&Cs”), that you agreed to upon enrolling in the ServiceMagic network, and in the event of any conflict, these ServiceMagic Deals T&Cs shall govern.
  7. ServiceMagic may amend or modify these terms, or cancel any ServiceMagic Deals, by providing you with notice of any such amendments, modifications or cancellations.
  8. Sections 3, 4, 5, and 8 of these ServiceMagic Deals T&Cs shall survive any termination or expiration of these ServiceMagic Deals T&Cs or the SM T&Cs.