LEAD BUYER TERMS AND CONDITIONS
Lead Purchase Agreement
This Lead Purchase Agreement (“Agreement”) is between EZLocal Hero , a Nevada corporation (“ EZLocal Hero ”), and the undersigned party (Lead Buyer). Each of EZLocal Hero and Lead Buyer are from time to time referred to herein as a “Party” and collectively as the “Parties.”
WHEREAS, EZLocal Hero is the owner and developer of websites where consumers can obtain information for quotes related to a variety of products; and
WHEREAS EZLocal Hero and Lead Buyer desire to create a relationship whereby consumers visiting the website operated by EZLocal Hero (each a “Lead” and collectively, the “Leads”) may be transferred to a Lead Buyer-owned website or server (the transfer process is hereinafter called the “Lead Generation”). For purposes of this Agreement, “Lead Generation” also includes the acquisition of Leads by Lead Buyer pursuant to EZLocal Hero ‘s pay-per-click program, if so, elected by Lead Buyer. EZLocal Hero will sell eligible leads to Lead Buyer, through a real-time lead transfer integration interface, the documents related to which have been, or will be, provided by Lead Buyer to EZLocal Hero separately.
NOW, THEREFORE, in consideration of the mutual consideration, promises, representations, and covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Any term not otherwise defined herein shall have the meaning specified below:
2. Purpose and Scope; Exclusive Leads. During the Contract Term (as defined below), EZLocal Hero agrees to provide Lead Buyer with exclusive Leads for Consumers who meet Lead Buyer’s account parameters. Lead Buyer may re-sell such Leads to Personal/Installment Loan Lenders or to other providers of Settlement Services, subject in all respects to the limitations and restrictions on such sale set forth herein. Lead Buyer agrees to pay EZLocal Hero for such Leads as provided in this Agreement. For the avoidance of doubt, (i) EZLocal Hero does not guarantee that any minimum quantity of Leads will be provided; and (ii) all Leads are provided on an exclusive basis and solely for Lead Buyer’s permitted use hereunder. EZLocal Hero will sell eligible leads to Lead Buyer through a real-time lead transfer integration interface, the documents related to which have been, or will be, provided by Lead Buyer to EZLocal Hero separately. If Lead Buyer identifies any purchased Lead as fraudulent or otherwise invalid, Lead Buyer must provide EZLocal Hero with written notice via email that identifies each Lead asserted to be fraudulent or otherwise invalid, includes the factual basis for Lead Buyer’s assertion, and provides information recorded from the Lead (including date submitted, IP address, Lead ID, and the contact information submitted in the Lead [not including social security number]). Lead Buyer may scrub these Leads within three (3) days after the end of the date for which the Lead was sold to Lead Buyer, if approved by EZLocal Hero . If Lead Buyer does not scrub a lead within three (3) days after the Lead sale, after having notified EZLocal Hero of the basis for that invalidation, the Lead shall be considered valid and will be billed. Sold leads that are later denied by a merchant account provider or a bank because the bank account was over its credit limit or lacked sufficient funds shall not be considered fraudulent or invalid Leads unless the Lead otherwise included materially false or fraudulent information.
3. Lead Buyer’s Responsibilities and Obligations.
4. Lender Interface and Lead Buyer’s Responsibility for Filter Updates.
5. Price and Payment Terms. The initial cost per lead (“CPL”) for the Leads to be provided hereunder will be set forth between EZLocal Hero and Lead Buyer, prior to leads being sent from EZLocal Hero to Lead Buyer. Further, Lead Buyer may provide EZLocal Hero with a log-in to Lead Buyer’s publisher interface, where EZLocal Hero can review Lead Buyer’s calculation of the payments owing to EZLocal Hero for the transactions to be conducted hereunder. For the avoidance of doubt, EZLocal Hero ‘s calculation of the fees payable to EZLocal Hero hereunder shall be binding on the parties (absent fraud or manifest error). Further, EZLocal Hero will invoice Lead Buyer on a weekly schedule for the leads billable in the preceding week. Any such invoice may be rendered by electronic mail or other electronic means; and, if so rendered, shall be deemed received upon dispatch. Any dispute or objection by Lead Buyer to such invoices or fees payable for the immediately preceding week must be made in writing and received by EZLocal Hero within three (3) business days thereafter. Lead Buyer will make payment to EZLocal Hero for the undisputed portion of each account statement for the immediately preceding week on net/7 terms, so that payment is received by EZLocal Hero on or before seven (7) days after the invoice was sent by EZLocal Hero . Notwithstanding the foregoing, all amounts due from Lead Buyer in connection with EZLocal Hero ‘s pay-per-click program shall be invoiced and payable weekly on Monday; and Lead Buyer shall pay the amounts due for pay-per-click Leads immediately upon rendition of the invoice therefor. All past due amounts shall accrue interest until paid at the lesser of 1.5% per month or the highest rate permitted by Nevada law. EZLocal Hero reserves the right to discontinue lead delivery to Lead Buyer in the event that an invoice is past due. Contemporaneously with the execution of this Agreement, Lead Buyer is providing EZLocal Hero with information concerning Lead Buyer’s non-consumer, business checking account or non-consumer, business credit or debit card (the “Account”). Lead Buyer authorizes EZLocal Hero to electronically debit the Account (and any successor account hereafter designed by Lead Buyer, which must be a non-consumer, business account) and, if necessary, to electronically debit or credit the Account to correct previous under- or overcharges. This is an authorization for recurring charges in varying amounts substantially as set forth in EZLocal Hero ‘s invoices. This authorization will remain in full force and effect until Lead Buyer notifies EZLocal Hero that it wishes to revoke this authorization, which Lead Buyer may do by giving written notice to EZLocal Hero of such revocation in the manner set forth in paragraph 14(c) below. No such revocation will be effective until the tenth (10th) day following actual receipt by EZLocal Hero of such notice. Lead Buyer represents and warrants to EZLocal Hero that: (a) Lead Buyer has retained a copy of this authorization (by printing out a copy of this Agreement or by storing a copy of this Agreement on Lead Buyer’s computer); (b) Lead Buyer is not a “consumer” within the meaning of the Electronic Funds Transfer Act and its implementing Regulation E, and any comparable state or other applicable law; and (c) in any event, the proceeds from EZLocal Hero to Lead Buyer shall not be used for any personal, family or household purposes.
6. Lead Buyer’s Compliance with Applicable Law. Lead Buyer represents, warrants and covenants that: (a) it has reviewed all applicable state, federal, Personal/Installment loan specific laws or and regulations governing the relationship between Lead Buyer and any Consumer or Lead acquired pursuant to this Agreement and including, but not limited to: The Gramm-Leach-Bliley Act, the Safeguards Rule, the EU-U.S. Privacy Shield Framework, the Truth in Lending Act, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act (“FCRA”), the Equal Credit Opportunity Act (“ECOA,” including its implementing Regulation B), the Electronic Funds Transfer Act (including its implementing Regulation E), the Federal Trade Commission Act, the FTC Telemarketing Sales Rule (including without limitation the provisions thereof related to Settlement Services), the Prescreen Opt-Out Notice Rule, and the Red Flags Rule, and further represents, warrants and covenants that it is currently in compliance therewith and will continue to comply therewith in connection with any Consumer with whom Lead Buyer engages in any transaction as a result of EZLocal Hero ’s services; (b) it is duly licensed, authorized and certified by all applicable governmental regulatory authorities to operate its business as it is now conducted and, that in connection with any business transacted with any Consumer with whom Lead Buyer engages in any transaction as a result of EZLocal Hero ’s services under this Agreement, (i) it shall acquire and maintain appropriate licenses, authorizations, and certifications from all applicable governmental regulatory authorities required to perform its obligations hereunder, including those required under the applicable state law of the Consumer’s residence, and (ii) no such transaction shall be illegal, void or voidable, in whole or in any part, under the law of the state of the Consumer’s residence; (c) all representations made on its respective website regarding its products or services shall be truthful, lawful and not misleading; and (d) it will use commercially reasonable efforts to maintain the security of its website and all Lead information, including, without limitation, as required by Section 7 hereof. Without limiting the generality of the foregoing, Lead Buyer will comply with all applicable requirements of Section 701(d) (6) of ECOA and Section 615(a) of FCRA relating to the delivery of adverse action notices. If EZLocal Hero has purchased any Lead from a third party (“Lead Seller”) that imposes additional or different compliance requirements on EZLocal Hero , EZLocal Hero will notify Lead Buyer of such additional or different requirements, and, upon such notification, Lead Buyer will comply with such additional or different compliance requirements of Lead Seller. Lead Buyer shall abide by the principles set forth in the Safe Harbor Act, and provide the safeguards required thereby with respect to the Consumers’, or its Affiliates’ customers’, private personal information transferred from the European Union countries to the United States. Lead Buyer shall create and maintain an information security program that meets the requirements set forth in the Safeguards Rule in order to (i) ensure the security and confidentiality of customer records and information; (ii) protect against any anticipated threats or hazards to the security or integrity of such records; and (iii) protect against unauthorized access to or use of such records or information that could result in substantial harm or inconvenience to the Consumer.
7.1. Certain Terms.
7.2 Confidential Information. Each Party will hold the other Party’s Confidential Information in confidence and will safeguard it with at least the same degree of care as a prudent businessperson would use to safeguard his or her own proprietary information and trade secrets, and each Party will use the other’s Confidential Information solely for purposes of performing under this Agreement. A Party will not be obligated to protect Confidential Information to the extent such information: (a) is publicly known other than through a wrongful act or omission of the receiving Party; (b) was available to or already known by the recipient on a non-confidential basis prior to its disclosure by the other Party; (c) is developed by the recipient independently of any information acquired from the other Party; (d) becomes available to the recipient on a non-confidential basis from a third Party, provided that the recipient has no reason to know that the third Party is or may be bound by a confidentiality agreement with the disclosing Party; or (e) is disclosed pursuant to a court order or the requirement of any governmental authority (in which case the recipient will promptly notify the disclosing Party of any such order or requirement, and cooperate, at the disclosing Party’s expense, in any effort to obtain a protective order from the issuing court or governmental authority limiting disclosure and use of the information). Each Party will, immediately upon request or the termination of this Agreement, return or destroy (at the disclosing Party’s request) all Confidential Information of the other Party and all copies and embodiments thereof.
7.3 Non-Competition. During the Term (as hereinafter defined) of this Agreement and for a period of one (1) year thereafter, Lead Buyer agrees that it will not knowingly use confidential disclosures made by EZLocal Hero to Lead Buyer to solicit or accept any business from other lead buyers or Lead Sellers who are working with EZLocal Hero or have worked with EZLocal Hero in the past.
7.4 Lead Information
7.5 Revisions. The parties in good faith agree to revisit and amend this Section from time to time as necessary to comply with changes to relevant laws and any other relevant changes in the industry generally.
8. Term, Termination and Survival. The Agreement will commence on the date the Lead Buyer executes this agreement and will continue for one (1) year thereafter (the “Initial Term”). Thereafter, the Agreement will automatically renew for successive renewal terms of the same length as the Initial Term (each, a “Renewal Term” and, together with the Initial Term, the “Term”) until the Agreement is terminated in accordance with this Section 8. Either Party may terminate the Agreement upon twenty-four (24) hours’ prior written notice to the other Party at any time and for any reason. Notwithstanding anything else herein to the contrary, the following provisions will survive any termination of the Agreement and continue in full force and effect thereafter: Sections 5 through 14.
9. Representations, Warranties and Covenants of the Parties. Each Party hereby represents, warrants and covenants to the other Party that: (a) it has the full power and authority to enter into the Agreement and to carry out its obligations hereunder; (b) when executed and delivered by such Party, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms and conditions; and (c) it will comply with all federal, state and local laws, rules, and regulations applicable to such party’s performance under the Agreement, including without limitation EZLocal Hero ‘s compliance with the CANSPAM Act of 2003 and all applicable intellectual property laws with respect to EZLocal Hero ‘s lead generation activities, and including without limitation Lead Buyer’s compliance with any additional or different compliance requirements of Lead Seller. Further, EZLocal Hero represents, warrants and covenants to Lead Buyer that the Consumer associated with each Lead sold or distributed hereunder, at the time of such Consumer’s submission of an Request for information form, (i) consented to the distribution by EZLocal Hero of such Consumer’s Consumer Information to Personal/Installment Loan Lenders for the purpose of contacting the Consumer and providing a requested quotation or obtaining additional information for the Personal/Installment loan product or Settlement Services, as applicable, and (ii) consented to each such Personal/Installment Loan Lender confirming the Consumer’s Consumer Information through the use of a consumer report, expressly including a credit report and, as applicable, a bank account record history.
10. Restrictions on Marketing Practices
10.1 No Text Message Marketing Covenant.
10.1.2 Text Message Compliance. Lead Buyer, its Affiliates and indirect Affiliates, including all persons using the purchased Leads, are responsible for complying with all federal, state, and local locals, rules, and regulations governing all of their marketing activities, including but not limited to the Telephone Consumer Protection Act (“TCPA”) and Federal Communications Commission rules implementing the TCPA. Lead Buyer hereby understands and agrees that the TCPA makes it unlawful to use any automatic telephone dialing system to make any call or send any text message to any telephone number assigned to a cellular telephone service, unless the call is made for emergency purposes or with the prior express consent of the called party. See 47 USC § 227(b) (1) (a); 47 C.F.R. § 1200(a). Lead Buyer further understands and agrees that the TCPA provides private parties the right to sue any such party responsible for violating its text messaging rules.
11.Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party and its directors, officers, shareholders, employees, agents and Affiliates from and against any and all third-party actions, claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and out-of-pocket costs (collectively, “Claims”) arising out of or related to any alleged breach of this Agreement (including without limitation any alleged breach of any representation or warranty set forth herein or violation of applicable law, and including any alleged breach by Lead Buyer of the lead seller’s terms, if not EZLocal Hero ) by such Party. In addition, Lead Buyer shall indemnify the lead seller against Claims, including without limitation Claims arising from Lead Buyer’s asserted breach of additional or different compliance requirements of the lead seller. The lead seller is an intended beneficiary of this Agreement and may enforce these indemnification provisions in its own name. The indemnifying Party’s indemnification obligations are conditioned upon the indemnified Party: (i) giving prompt notice to the indemnifying Party of the claim or action; (ii) granting to the indemnifying Party of the right to participate reasonably in the defense or settlement of the claim or action (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice or detrimentally impact the indemnified Party in any way); and (iii) providing reasonable cooperation and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim or action.
12. LIMITATION OF LIABILITY. EXCEPT FOR ANY THIRD-PARTY INDEMNITY CLAIMS, TO THE GREATEST EXTENT PERMISSIBLE, AND NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER, REGARDLESS OF WHETHER LEAD BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.