LEAD PURCHASE TERMS AND CONDITIONS

      READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE INSERTION ORDER ON WHICH THEY ARE REFERENCED (the "Insertion Order"), CONSITUTE A LEGALLY BINIDNG AGREEMENT AND GOVERN YOUR PURCHASE FROM ACADEMIXDIRECT, INC. OF LEADS (AS DEFINED BELOW). BY SUBMITTING THE INSERTION ORDER TO ACADEMIXDIRECT, INC., YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT SUBMIT AN INSERTION ORDER TO, AND MAY NOT RECEIVE LEADS FROM, ACADEMIXDIRECT, INC.
      These Lead Purchase Terms and Conditions (these "Terms and Conditions"), together with the insertion order on which they are referenced (the"Insertion Order" or "IO") constitute a legally binding agreement (the "Agreement") between the party submitting the Insertion Order ("you" or "Customer") and AcademixDirect, Inc., a Delaware corporation, with offices at 1901 Landings Drive, Mountain View, CA 94043 ("AxD"), that is made and entered into as of the date upon which the Insertion Order is accepted by AxD in accordance with these Terms and Conditions (the "Effective Date").
1 DEFINITIONS

1.1
"Applicable Law" means all federal, state or local laws, statutes, rules and regulations applicable to Lead Generation (in the case of AxD) or use of Leads (in the case of Customer), including but not limited to, all Education Regulatory Requirements (including without limitation those prohibiting the payment of commissions, bonuses or other incentive payments based in any part, directly or indirectly, upon success in securing enrollments or the award of financial aid), the CAN-SPAM Act of 2003, the Do Not Call Implementation Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telephone Consumer Protection Act and all other applicable laws relating to contacting consumers and Leads (including without limitation relating to the processing of live do-not-call or do-not-text requests from consumers).
1.2
"Duplicate Lead" means a Lead that has been previously submitted by AxD to Customer (or an applicable Client where Customer is an Agency) within the immediately preceding thirty (30) days.
1.3
"Education Regulatory Requirements" means any and all of the following: (i) any applicable provision of Section 487(a)(20) of the Higher Education Act of 1965, as amended (20 U.S.C. 1094(a)(20)), or any successor provision, or the regulations promulgated thereunder by the U.S. Department of Education ("DoE"), at 34 C.F.R. 668.14(b)(22), or any successor regulation, or any written guidance as DoE may from time to time issue respecting such statutory and regulatory provisions, (ii) any other provision of the Higher Education Act of 1965, as amended, or its implementing regulations or any successor provisions, including without limitation, 34 C.F.R. 668.71-668.75 concerning misrepresentations, and the related statutory provisions concerning misrepresentations (the "Misrepresentation Rules") and (iii) the Family Educational Rights & Privacy Act ("FERPA"), or any of its implementing regulations.
1.4
"Fees" means the fees to be paid by Customer to AxD for Valid Leads, as set forth in the applicable IO.
1.5
"Invalid Lead" means a Lead that: (i) is a Duplicate Lead; (ii) contains incorrect contact information; (iii) names an individual who did not request information about educational programs or courses of study offered by Customer; or (iv) names an individual who is deceased.
1.6
"Lead" means a request for information, or an expression of interest in information, by one or more individual consumers, whether electronically or by telephone, relating to various types of tutoring programs, child care, educational programs, certification programs, and/or degrees or any other programs as described in the IO.
1.7
"Lead Generation" means the generation of Leads derived from a variety of sources, including without limitation Sites, publishers, e-mail marketers, advertisements, call centers, and third party lead aggregators and/or lead generators.
1.8
"Lead Generation Content" means all content, advertising, scripts and other materials used by AxD in the conduct of Lead Generation.
1.9
"Posting Instructions" means the specific requirements and prohibitions related to Lead Generation for Customer that are provided by Customer for use by AxD in connection with the IO.
1.10
"Rejected Lead" means a Lead delivered by AxD to Customer that is rejected by the Customer's system in real time, and with respect to which Customer never captures, retains or uses any information.
1.11
"Representative" means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
1.12
"Returned Lead" means a Lead delivered by AxD to the Customer, which the Customer identifies as an Invalid Lead, and with respect to which Customer submits a request for a lead credit.
1.13
"Site" means a website used by AxD for the purpose of conducting Lead Generation.
1.14
"Telephone Lead" means (i) a consumer-initiated telephone call to the phone number listed on a Site, or (ii) a telephone call that is initiated by a call center to a consumer, and which such telephone call is either (a) transferred immediately to Customer with the consumer remaining on the phone for a minimum of 120 seconds (or such other period of time that is set forth in the ) (a "Transferred Telephone Lead") or (b) completed by the call center and the information from such call entered into AxD's systems and provided as an electronic Lead.
1.15
"Valid Lead" means any Lead that is not an Invalid Lead or a Rejected Lead and which includes: (i) first and last name; (ii) complete mailing address (when required); ( iii) at least one valid phone number; (iv) email address (when required); and (v) any other criteria provided in the IO. In addition, any Transferred Telephone Lead shall be deemed to be a Valid Lead.

2 INSERTION ORDERS

2.1
Acceptance.  Upon receipt of the Insertion Order approved by Customer, AxD will use commercially reasonable efforts to accept or reject the Insertion Order with five (5) business days. AxD may accept the Insertion Order by written acknowledgement or by commencing performance. Upon acceptance of the Insertion Order by AxD, the IO shall be deemed to incorporate the terms and conditions of this Agreement, provided that in the event of a conflict between the terms of an IO and the terms of this Agreement, the terms of the IO shall prevail over this Agreement.
2.2
Changes.  Changes to Lead quantities in an IO and changes to Posting Instructions may be approved by email. All other material changes to an IO, including but not limited to pricing, or legal terms, must be approved in a signed writing, which may be in the form of a revised IO.

3 LEAD GENERATION

3.1
Lead Generation.  AxD shall use commercially reasonable efforts to deliver to Customer Valid Leads in accordance with the Insertion Order. Customer agrees that AxD may use third party sources to drive traffic to Sites for purposes of Lead Generation. At Customer's request, AxD shall provide all Lead Generation Content to Customer for approval by Customer. All Lead Generation Content approved by Customer, and any Lead Generation Content that Customer did not request for approval, shall be deemed to comply with all of the terms and conditions of this Agreement.
3.2
Posting Instructions.  Customer shall deliver to AxD all Posting Instructions applicable to a particular campaign no later than two (2) business days before the start date of such campaign. AxD shall use commercially reasonable efforts to comply with any Posting Instructions provided in compliance with the foregoing sentence. Any Leads generated not in conformance with Posting Instructions as a result of Customer's delayed delivery of such Posting Instructions shall not be deemed Invalid Leads based on such non-conformance.
3.3
Lead Delivery.  AxD shall submit Leads to Customer electronically (including Telephone Leads), using commercially reasonable efforts to submit such Leads in real time following their receipt by AxD, or in the form of Transferred Telephone Leads.
3.4
Excess Leads.  Customer may, in its sole discretion, accept Valid Leads delivered by AxD to Customer in excess of the total number of Valid Leads ordered under an applicable Insertion Order and will be liable for payment for such over-delivered Leads at the Fee for a Valid Lead listed in the applicable IO. Any over-delivered Valid Leads that are not accepted by Customer shall be promptly returned to AxD, and are deemed to be Returned Leads.
3.5
Billable Lead Counts.  Within five (5) days of the end of each calendar month, Customer shall return to AxD all Returned Leads rejected by Customer during such calendar month, along with a report containing an accounting of the total number of Leads (excluding Rejected Leads) provided by AxD to Customer during the calendar month just ended and the total number of Returned Leads, and setting forth the grounds for rejection of each Returned Lead ("Returned Leads Report"). In the event that Customer fails to notify AxD of any Returned Leads within five (5) business days of the end of an applicable calendar month in which such Leads were provided, then all such Leads delivered to Customer and not timely returned to AxD shall be deemed Valid Leads for the month in which they were delivered. AxD shall verify the Customer's basis for each Returned Lead within five (5) business days of receipt of the Returned Leads Report. In the event that AxD does not agree with the Customer's grounds for one or more Returned Leads, the parties will work together in good faith to resolve the discrepancy in a timely manner. The total number of Leads delivered to Customer in the month minus the total number of agreed upon Returned Leads for the same month is the "Billable Lead Count" for such month. Customer shall not contact a consumer referenced in a Returned Lead, nor otherwise use the data contained in a Returned Lead, and Customer shall not maintain in any of its systems the data contained in a Returned Lead.
3.6
Converted Lead Report.  Customer will make available to AxD in real time, or as soon thereafter as reasonably practicable, a report describing the number of Valid Leads that converted into an enrolled student, the date and time when a Valid Lead is initially contacted by Customer and or a Client (as applicable), the number of times each Valid Lead was contacted during the period being reported and the disposition (e.g., placement) of the Valid Lead.

4 INVOICING AND PAYMENT; TAXES

4.1
Invoices and Payment.  AxD shall submit monthly invoices to Customer for Valid Leads in accordance with the Billable Lead Count for each calendar month, and for related expenses (if any) actually incurred by AxD in such calendar month. Invoices are due and payable within thirty (30) days from the date of the applicable invoice ("Due Date"). Undisputed invoices (or those portions of an invoice that are not disputed and) not paid by their Due Date may be subject to an interest charge equal to the lesser of the rate of 1.5% per month or the maximum rate allowed by law. Each invoice delivered by AxD to Customer shall set forth the following: (i) AxD's invoice or IO number; (ii) Customer's purchase order number, if applicable; (iii) the number of Valid Leads relating to the invoice; (iv) detailed line item descriptions of any additional amounts billed; (v) the rate and amount of any taxes, as a separate line item; and (vi) the total amount of the invoice. Credit memos will be issued for any authorized Returned Leads and must be redeemed by Customer for AxD services within 60 days of issuance. Credit memos are not transferable and carry no monetary value.
4.2
Taxes.  Customer will be responsible for sales taxes relating to any purchased Valid Leads provided by AxD to Customer and imposed by authorities having jurisdiction within any of the United States. Customer shall not be responsible for any taxes, assessments or similar levies imposed based on AxD's income.
4.3
Disputed Amounts.  Customer will promptly notify AxD in writing of any dispute with respect to any invoice, and the parties will cooperate in good faith to reach a prompt resolution of any such dispute within thirty (30) days. Notwithstanding any provision herein to the contrary, failure of Customer to pay any disputed amounts on a timely basis will not be considered a late payment or a breach of this Agreement; provided that (i) Customer has notified AxD of such disputed amount on or prior to the applicable Due Date, (ii) all undisputed amounts are paid in a timely fashion, (iii) appropriate personnel of Customer make themselves available to resolve the dispute, and (iv) all disputed amounts that Customer subsequently agrees in writing to pay or that are found to be due and owing by a court of competent jurisdiction shall be paid within thirty (30) days from the date of such agreement or finding.
4.4
Records and Audits.  During the term of this Agreement and for three (3) years after the expiration or termination of this Agreement, Customer shall maintain complete and accurate books and records related to the Leads delivered by AxD, the grounds for any Returned Leads, use of any data contained in a Returned Lead, and the amounts owing and/or paid to AxD under this Agreement and all related IOs (collectively, the "Records"). Customer shall permit AxD to audit the Records through a reputable independent consulting or other professional firm designated by AxD to have access, at a mutually agreed upon time during normal business hours, to the Records for the purposes of determining whether the appropriate fees have been paid by Customer to AxD hereunder. If a fee underpayment is discovered, Customer will promptly pay the amount of the underpayment to AxD. AxD will pay the cost of the fee audit, provided that if an underpayment of five percent (5%) or greater is discovered, then Customer will be required to pay the reasonable costs of the audit.

5 TERM AND TERMINATION

5.1
Term.  Unless earlier terminated pursuant to the terms hereof, the term of this Agreement shall commence on the Effective Date and shall continue in effect until the first anniversary of the Effective Date, at which point, the term of this Agreement shall automatically renew and continue in effect for successive one (1) year periods.
5.2
Termination.
5.2.1
Termination for Convenience.  This Agreement or any IO (unless an IO is designated as non-cancelable) may be terminated, in whole or in part, without penalty by Customer for any reason at any time during the term of the Agreement upon the giving of thirty (30) days' prior written notice to AxD. For clarity and by way of example, if Customer cancels the IO eight (8) days prior to publication of the first Lead Generation Content, Customer will be responsible for the first twenty-two (22) days of the campaign (calculated based on a pro rata portion of the entire month Lead quantity as listed on the IO, assuming even delivery throughout the month). Similarly, if Customer cancels the IO twenty (20) days after publication of the first Lead Generation Content, Customer will be responsible for the actual twenty (20) days of Valid Leads plus an additional ten (10) days of the campaign (calculated based on a pro rata portion of the entire month Lead quantity as listed on the IO, assuming even delivery throughout the month). AxD may terminate this Agreement for any reason and without penalty upon ten (10) days' prior written notice to Customer.
5.2.2
Termination for Cause.  This Agreement may be terminated by either party in the event of a material breach by the other party which has not been cured within fifteen (15) days of written notice of such breach by the non-breaching party.
5.3
Effect of Termination.  Except as otherwise stated herein, no party terminating this Agreement pursuant to the terms hereof shall have any liability for or arising out of such termination, and all rights and obligations of the parties arising under this Agreement shall terminate, provided that all amounts payable prior to such termination or in connection with services rendered or Valid Leads provided by AxD to Customer prior to such termination shall be paid in accordance with the terms of this Agreement.
5.4
Survival.  The provisions of Sections 1, 4, 5.3, 5.4, 6-10 shall survive any termination or expiration of this Agreement.

6 CONFIDENTIAL INFORMATION

6.1
Confidential Information.  "Confidential Information" includes (i) all information marked as "Confidential," "Proprietary," or similar legend by the disclosing party ("Discloser") when given to the receiving party ("Recipient"); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary, including, but not limited to any details set forth in an IO. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except a Representative who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this Section 6. Recipient will not use or disclose Discloser's Confidential Information other than as provided for herein and in an applicable IO.
6.2
Non-Applicability.  The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is the result of Recipient's breach of this Agreement, (ii) prior to disclosure hereunder was already in the Recipient's possession without restriction, (iii) subsequent to disclosure hereunder is obtained by Recipient on a non-confidential basis from a third party who has the right to disclose such information or (iv) was developed by the Recipient without use of the Confidential Information.
6.3
Disclosure Required by Law.  Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party's Confidential Information in compliance with that order only if such party (i) unless prohibited by law, gives the other party prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party's cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party's Confidential Information than is reasonably necessary to comply with an applicable order.
6.4
No Circumvention.  Customer acknowledges that AxD has expended significant time and effort to establish relationships with certain third parties that are used by AxD in the process of Lead Generation, and that the identity of such third parties constitutes the Confidential Information of AxD, and is subject to the provisions of this Section 6. Without limiting the generality of the foregoing, Customer agrees that should it become aware of the identity of any such third parties during the course of the performance of this Agreement, it will not directly or indirectly, itself or through any intermediary, contact any such third party in an effort to circumvent AxD and deal directly with such third party for the purchase of Leads.

7 WARRANTIES AND DISCLAIMERS

7.1
Authority.  Each party represents and warrants that it has the right, power and authority to enter into this Agreement, and to perform its obligations hereunder, and such execution and performance will not violate any other agreement or obligation to which it is bound.
7.2
Customer Representations and Warranties.  Customer represents and warrants to AxD that it will only use Leads provided by AxD in accordance with Applicable Law and will not contact consumers identified in Returned Leads or otherwise use the data in a Returned Lead.
7.3
Warranty Disclaimer and Limitations.  AXD MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO THE LEADS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT OR THE CONVERSION OF THE LEADS TO ENROLLMENT WITH CUSTOMER OR CUSTOMER'S CLIENTS (WHERE CUSTOMER IS AN AGENCY), AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AXD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT WITH RESPECT TO SUCH LEADS AND ANY OTHER SERVICES PROVIDED HEREUNDER. FURTHER, AXD DOES NOT WARRANT THAT THE LEADS WILL BE VALID LEADS.

8 INDEMNIFICATION

1.
Obligation.  Customer agrees, at its expense, to defend, or at its option settle, any third party claim, suit, action or proceeding (collectively, "Claim") brought against AxD arising out of or based upon the Customer's breach of this Agreement or arising out of or based upon such third party's use (or unavailability) of Customer's services or damages that relate to or arise from a third party's use of Customer's services.

9 LIMITATION OF LIABILITY

9.
Disclaimer of Certain Damages.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9.1 SHALL NOT APPLY TO CUSTOMER'S INDMENIFICAITON OBLIGATIONS UNDER SECTION 8 OR A BREACH BY EITHER PARTY OF SECTION 6 OF THIS AGREEMENT.
9.
Damages Cap.  IN NO EVENT SHALL AXD'S AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY AXD UNDER THIS AGREEMENT.
9.
BASIS OF THE BARGAIN.  CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (i) ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE AND (ii) FORM A MATERIAL PART OF THE BARGAIN SET FORTH IN THIS AGREEMENT AND THAT AXD WOULD NOT BE WILLING TO ENTER INTO THIS AGREEMENT BUT FOR THE INCLUSION HEREIN OF SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.

10 GENERAL

10.1
Assignment.  Customer may not assign this Agreement, in whole or in part, without the prior written consent of AxD. Any assignment in violation of this Section 10.1 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective successors and assigns.
10.2
Customer Identification.  Customer consents to AxD's identification of Customer as a customer of AxD on its website, through a press release issued by AxD and in other promotional materials.
10.3
Fees.  In any judicial proceeding between Customer and AxD arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys' fees.
10.4
Force Majeure.  Neither party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such party's reasonable control, including, but not limited to fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, cyber attacks, network failures, acts of God, or labor disputes.
10.5
Governing Law. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles. All suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County, California. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach by either party of Section 6 may cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief without the requirement of posting a bond or surety. If any provision(s) hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties.
10.6
Notices.  Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given and effective the following day, if given in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address set forth at the beginning of this Agreement it will be deemed effective the third day following such postal delivery. Either party may from time to time change its address for notices under this Section by giving the other party notice of the change in accordance with this Section 10.6.
10.7
Non-solicitation.  During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit nor approach any of AxD's employees or contract staff ("Restricted Persons") with a view to offering such Restricted Persons, employment or the opportunity to perform services for Customer or sell products to Customer competitive with the products or services of AxD.
10.8
Non-waiver.  Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party's right to assert or rely upon such provision, right or remedy in that or any other instance.
10.9
Entire Agreement.  This Agreement and the Insertion Orders entered into hereunder constitute the parties' complete agreement with respect to the subject matter of this Agreement and supersede all prior proposals, understandings, and agreements, whether oral or written, between the parties, including but not limited to any non-disclosure agreements previously entered into between the parties. This Agreement may not be amended or modified except in writing, signed by an authorized representative of each party. Any electronic terms of Customer which AxD may be required to accept, such as, but not limited to, for accessing reporting, invoicing or providing Lead data, shall be of no force and effect even if such acceptance occurs prior to, contemporaneous with, or subsequent to this Agreement or an IO. This Agreement and each IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. A facsimile transmission of an executed signature page of this Agreement shall have the same force and effect as an original signature page.