Lead Provider gathers information from
consumers interested in various services related to their outstanding
liabilities (e.g., debt management, debt consolidation, tax
settlements, and loan modifications). Such individuals then provide
their personal information to an operator via a telephone call. Such
information is hereinafter referred to as a “Lead”.
Lead Provider then transfers such Leads via a
live telephone call transfer to third parties such as Reseller.
Reseller owns and operates a
lead generator and aggregator business and desires to acquire Leads
from Lead Provider to transfer to third party businesses (“Clients”).
NOW, THEREFORE, in consideration of the
promises and mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
Recitals. The above recitals are true
and complete and incorporated herein by this reference.
Representation of Lead Provider. Lead
Provider represents and warrants to Reseller:
that it possesses all rights necessary to
acquire the Leads and sell the Leads to Reseller as required by
applicable laws;
that each of the Leads it transfers to
Reseller has requested to be connected to someone that can assist
such person with their particular issue(s);
that is will pay all of the costs and
expenses associated with its marketing efforts in obtaining Leads
and transferring them via live transfer to Reseller;
that it is in compliance with all applicable
federal, state, county and local laws, rules and/or regulations
that govern its marketing activities in relation to the Leads
(collectively “Laws” or “Law”), including but not limited
to the Truth in Lending Act, Equal Credit Opportunity Act, the
Federal Privacy Law Gramm-Leach Bliley, the Telemarketing Sales
Rule, the Telephone Consumer Protection Act, all state and federal
laws that (1) limit or prohibit telephone calls to persons on “Do
Not Call”, “Do Not Mail” and “Do Not Email” registries,
or (2) prohibit deception or the making of false or misleading
claims or omissions;
that pursuant to the aforementioned “Laws”
and any state counterpart, it is legally permitted to contact all
Leads as a result of “established business relationships”
created by “consumer inquiries” and that all such contacts are
therefore subject to a 90 day callback window prior to engaging in
federal and state “Do Not Call” compliance. Reseller
understands that certain states, such as North Dakota, may have
shorter (more restrictive) permissible callback periods, and as
such, Reseller agrees to abide by those more restrictive periods;
that it has and shall maintain proper
licensing and/or bonding in all states in which licensing and/or
bonding is required in order to conduct its business (1) in such
state, or (2) involving Leads residing in such state;
that is understands that at the beginning of
each week Reseller shall provide a notice regarding the number of
Leads it requires for such week, and it will use its best efforts
to deliver the requested number of Leads; and to the extent is
fails to so deliver, Reseller shall be entitled to a credit for any
amounts it over paid for the Leads ultimately delivered during such
week as otherwise provided herein.
Responsibilities of Parties.
Lead Provider will deliver live Leads to
Reseller in accordance with weekly notification provided by
Reseller of the weekly Leads requested. Leads shall be transferred
to Reseller’s call center via a live telephone call transfer to
the telephone number provided by Reseller to Lead Provider.
A Lead shall be deemed delivered when
transferred to Reseller's specified telephone number and the
telephone call is answered via an automated phone system, a
voicemail or a live person, or, if the telephone call is not
answered, after 20-seconds of ring-time or upon encounter of a busy
or disconnect signal.
All obligations relating to the receipt of
Leads transmitted by Lead Provider shall be the sole responsibility
of Reseller. Reseller shall be responsible for payment for all
Leads delivered.
Leads are being sold exclusively to Reseller
for the services provided by its Clients, and will not be sold to
any other person.
Billing and Lead Return Policy
Reseller agrees to pay Lead Provider a Lead
Generation Fee for each Lead delivered as herein set forth. Leads
that are duplicates (the Leads from the same person sent to
Reseller by Lead Provider more than once) shall only be paid for
one time.
The Lead Generation Fee per lead is proposed
before leads are delivered and may be changed only when confirmed
in writing by Reseller and Lead Provider at their sole discretion.
Lead Provider agrees that any change or request received on Lead
Provider company letterhead, from Lead Provider company's email
address, or from any person holding themselves out to be a
representative of Lead Provider shall be binding upon Lead Provider
unless Lead Provider designates, in writing, a limited number of
persons permitted to bind it. Notwithstanding anything contained in
this paragraph 4.2 above, no change will be deemed valid or
accepted unless confirmed in writing by each party.
Refunds of any pre-paid Lead Generation Fees
shall be treated as credits for future Lead purchases. If any
refunds are due at the termination of this Agreement, they shall be
due and payable within five (5) days of termination. Lead Provider
agrees to pay all costs, including but not limited to court costs,
collection agency fees, and reasonable attorney fees, incurred by
Reseller in any action seeking to collect past due Refunds.
Reporting/Objections/Refunds.
Information about Reseller’s account, including detailed account
statements showing the Leads Reseller received each week and
Reseller’s account balance shall be available within two (2)
business days of written request. Any objections Reseller has to the
quality or validity of Leads provided to Reseller shall be made in
writing no later than thirty (30) days from the end of the calendar
month from when the Lead was transferred to Reseller.
Non-Circumvent. While a Lead Provider
for Reseller and for one (1) year thereafter, Lead Provider may not
enter into a business relationship with any of Reseller’s Clients
unless (1) a previously existing business relationship between Lead
Provider and the Client can be demonstrated to the reasonable
satisfaction of Reseller; or (2) Lead Provider and the Client are
introduced through no accidental or purposeful disclosure by
Reseller or Client. In this connection, both Parties agree and
acknowledge that if Lead Provider violates its obligations
hereunder, in addition to all other remedies available to Reseller,
Reseller shall be entitled to liquidated damages equal to the
greater of (i) the amount each such Client paid Lead Provider for
any and all Leads any such Client acquired from Lead Provider and
(ii) the amount such Client who have had to pay Reseller for any
such Lead, less one-half the amount (1/2) Reseller would have had to
pay Lead Provider for such Lead in accordance with this Agreement
(reduction made only in the event this Agreement remains in effect
as of such time). Lead Provider acknowledges, understands, and
agrees that these liquidated damages are a fair and accurate
estimate of Reseller’s actual damages resulting from a breach of
this provision and shall not be construed as penalty or punitive
damages against Lead Provider. Further, without this provision and
the repercussions to Lead Provider contained herein, Reseller would
not be entering into this relationship with Lead Provider.
Indemnification. Both Parties agree
they shall defend, indemnify, save and hold harmless the other party
for any damages or liabilities the other party may incur as a result
of breach of any representation, warranty, and/or agreement provided
by the party herein, including attorneys fees, fines and penalties.
Further, Lead Provider agrees to indemnify, save and hold harmless
Reseller for any damages or liabilities that Reseller may incur as a
result of Lead Provider’s non-compliance with any applicable laws.
Damages for Breach of Contract. In
the event of a breach of this Agreement by either Reseller or Lead
Provider resulting in damages to the other party, that party may
recover from the party breaching the Agreement any and all damages
that may be sustained.
Term.
This Agreement shall commence on the date
provided above and shall continue to remain in full force and
effect until the statute of limitations expire related to any claim
a Lead that Reseller acquires from Lead Provider may have related
to Lead Provider’s services expires.
Notwithstanding anything stated in Section
9.1 to the contrary, either party to this Agreement may terminate
this Agreement by providing the other party with at least fourteen
(14) days prior written notice of its desire to terminate the
Agreement as of a date certain.
Amendment. This Agreement may be
amended at any time in writing executed by both Reseller and Lead
Provider.
Confidentiality. The terms and
provisions of this Agreement shall remain confidential to the
fullest extent allowed by law and shall only disclosed to those
persons needing to know for the purpose of performing their
respective duties and obligations hereunder or to a parties legal
and/or accounting representatives.
Binding Effect. This Agreement shall
be binding upon the parties, their successors, assigns and heirs.
Attorneys’ Fees. In the event any
party shall be forced to retain the services of legal counsel to
enforce the terms of this Agreement whether suit be brought or not,
the prevailing party shall be entitled to be reimbursed for all
attorneys' fees and court costs incurred.
Construction. This agreement and all
amendments hereto shall be construed in accordance with and governed
by the laws of the State of Florida. The parties agree that any
legal proceedings brought by either party in connection with or
arising out of this Agreement shall be brought in Orange County,
Florida and any interpretation rules that the
choice of words in an agreement shall be construed against the
drafter of an agreement shall not apply.
