Reciprocating Agreement: This agreement may be used as a reciprocating agreement where each company can be Purchaser and Seller with all conditions to be equal.
This Agreement shall govern any and all Insertion Orders (each an “IO”) submitted by Purchaser or Seller, or as an agency (collectively, “Client”). In the event that there is a conflict between the terms of this Agreement and the terms of any Insertion Order, the terms of the Agreement shall prevail and be controlling.
Purchaser desires to participate in the Seller’s lead sales program under which Purchaser may purchase certain Lead Data (as defined below) under the terms and conditions set forth herein. In consideration of the mutual promises and undertakings of the parties, and for other good and valuable consideration, receipt of which is hereby acknowledged, Seller and Purchaser agree as follows:
- Definitions — As used in this Agreement:
- “Confidential Information” — means this Agreement and any materials and information concerning either party which is confidential or proprietary in nature, including information of either party which acquires independent economic value from not being readily known or ascertainable by proper means by others and is not known to the general public. Confidential Information includes, but is not limited to, technical information, know-how, trade secrets, products, services, pricing, technology, software, programming, systems and use documentation, applications, data, databases, passwords, business processes and methods, information relating to supplier and customer identities and lists, business and marketing plans, end-user and customer information and all similar information.
- “Intellectual Property” — means proprietary assets of a party including all patents, trademarks, trade names, service marks, patents, logos, copyrights, web sites, domain names, content, text graphics, audio and video files owned by or licensed to a party.
- “Lead Data” — means a unique bundle of information on a prospective customer collected on a Seller Site. Lead Data shall include, at a minimum, the prospective customer’s actual first and late name, address, phone number, email address and date of birth.
- “Seller Site” — means any of the Seller’s (or its partners’ operating within Seller’s network) websites through which Lead Data is collected.
- Capitalized terms not specifically outlined in this Section shall have the respective meanings ascribed to them in the Agreement.
- Lead Sale Programs:
- Ping/Post Price Presentation: Seller will ping Lead Data (excluding the prospective customer’s contact information) to Purchaser in XML format (or such other format as agreed upon by the parties). Purchaser will view the Lead Data and determine a bid price it is willing to offer to Seller for the purchase of such Lead Data (“Bid Price”). Purchaser will send the Bid Price back to Seller, and if Seller determines that the Bid Price is acceptable, Seller will then post the full details of the Lead Data to Purchaser in exchange for the Bid Price.
- Direct Post Program: Seller will direct post the Lead Data to the Purchaser’s system in a format agreed upon by the parties. Purchaser will pay seller according to the terms of this Agreement for all Lead Data posted and not rejected or returned.
- Exclusivity: Any Lead Data presented by Seller to Purchaser pursuant to Section 2 shall be available for purchase on an exclusive basis, unless otherwise indicated at the time of the presentation or in the IO. Seller agrees that it will not sell, transfer, or otherwise deliver to any other party any “exclusive” Lead Data purchased by Purchaser hereunder.
- Acceptance/Rejection of Lead: Purchaser reserves the right to reject Lead Data for mapping errors, business rule errors, duplicate Lead Data, Lead Data containing incorrect consumer information, and/or suspected fraud. For purposes of the Agreement, “fraudulent leads” are defined as leads or sales containing stolen or unauthorized consumer information, leads or sales obtained using “spyware”, leads or sales generated by an identified fraud ring, or leads or sales containing forged or fabricated contact information. The foregoing shall not limit Purchaser’s right to reject Lead Data pursuant to the remainder of the Section 2. Notwithstanding anything contained herein to the contrary (a) Lead Data may not contain the same name and the same address, phone number or email address as any Lead Data that was delivered to Purchaser within the preceding thirty (30) day period, and (b) Lead Data may not be Lead Data generated by incentives or co-registration methods. Any Lead Data purchased by Purchaser that was improperly presented to the Purchaser pursuant to the preceding sentence shall be considered automatically rejected, and to the extent Purchaser pays the Bid Price for any such Lead Data, Seller shall immediately refund such Bid Price to Purchaser regardless of any use or sale by Purchaser of such Lead Data.
- Billing/Payment: Purchaser shall pay Seller for Lead Data released to Purchaser during each calendar month with payment terms set at NET 30 days. Seller will present Purchaser with an invoice for the Lead Data accepted by Purchaser for the previous month. The invoice will include all Returns (which are deemed acceptable by Seller) if said Returns are sent in the proper format and by stated date and time as stated in Section 3.2.
- Returns: Invalid leads include, but are not limited to invalid contact information, aged data, no intent or consumer never requested. Deadline for purchaser to return leads to the seller are as follows: All Auto Finance and New Car lead returns are due no later than 5:00 PM EST on the 15th of the following month in which lead was delivered.
In the event that the 15th falls on a weekend or federal holiday, returns will be due no later than 5:00 PM EST the following business day. All insurance and Home Improvement leads must be returned no later than 5:00 PM EST on the 10th of the following month regardless of which day this falls on, holidays and weekends included.
- Intellectual Property: During the term of this Agreement, each party shall have a limited, non- exclusive, non-transferable, revocable license to use the other party’s Intellectual Property solely as necessary for performance under this Agreement and for no other purposes. Except as expressly stated otherwise in the Agreement neither party shall have any permanent rights in and to any of the other party’s Intellectual Property.
- Authority: Each party represents and warrants that (a) it has the legal right to enter into this Agreement and (b) its execution and performance of the Agreement shall not violate any contract or license between it and any third party.
- Compliance: See Addendum A for complete regulations.
- Performance: Seller represents and warrants that it shall provide services under this Agreement in a professional and competent manner and in accordance with industry standards and the descriptions set forth in any documentation published by Seller or otherwise provided by Seller to Purchaser.
- Disclaimer: THE SERVICES AND LEAD DATA PROVIDED TO PURCHASER PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” AND SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, TITLE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NO SPECIFIC RESULTS FROM THIS AGREEMENT AND ANY LEAD DATA PURCHASED BY PURCHASER ARE ASSURED OR GUARANTEED. PURCHASER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF THE SELLER’S SUPPLIERS.
- Indemnity: Each of the parties will indemnify, defend and hold harmless the other from and against any and all claims, suits, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of any third-party action related to any breach by such party of its obligations, representations or warranties set for herein or the negligence or willful misconduct of such party.
- Limitation of Liability: PURCHASER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO THE SELLER UNDER THIS AGREEEMENT DURING THE THREE (3) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL PURCHASER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THE AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF PURCHASER HAS BEEN ADVISE OF THE POSSIBILITY OF SUCH DAMAGE.
- Protection of Confidential Information: The party receiving Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
- Exceptions: The Receiving Party’s obligations under Section 8.1 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make sure disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Return of Confidential Information: The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party and/or upon the expiration or termination of the Agreement. Upon request from the Disclosing Party, the Receiving Party will certify in writing signed by an officer of the Receiving Party that is has fully complied with its obligations under this Section 8.3.
- Term and Termination:
- Term: Unless earlier terminated pursuant to Section 9.2, the initial term of the Agreement will begin on the Effective Date and shall remain in effect for an initial period of one (1) year. Thereafter, this Agreement shall be automatically renewed for successive renewal terms of one (1) year each unless either party indicates its intention not to renew this Agreement at least thirty (30) days prior to the end of the then current term.
- Termination: Either party may terminate this Agreement if the other party (a) breaches any material provision of this Agreement and does not cure such breach immediately after receiving written notice thereof; (b) shall formally declare bankruptcy, insolvency, reorganization, liquidation, or receivership; or (c) shall have instigated against it bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, and shall fail to remove itself from such proceedings within ten (10) days from the date of institution of such proceedings. In addition, either party may terminate this Agreement for its convenience and without cause upon immediate written notice to the other party. In such event, the effective date of termination will be forty-eight (48) hours after notice has been issued.
- Survival: Sections 1, 4, 5, 6, 7, 8, and 10, along with all payment obligations, will survive expiration or termination of the Agreement for any reason.
- Assignments: Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third-party without the other’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, each party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
- Governing Law and Venue: This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without reference to its choice of laws rules. Any action or proceeding arising from or relating to this Agreement shall be brought in a state court of competent jurisdiction in the plaintiff’s state and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
- Remedies: Except as expressly provided otherwise in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges that its breach of Sections 5 and/or 8 of the Agreement would cause irreparable injury to the other party for which monetary damages would not be an adequate remedy and therefore, the other party will be entitled to injunctive relief. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorney’s fees, court costs, and other collection expenses, in addition to any other relief it may receive. Audits of Purchaser’s websites, financial reports, buyers and affiliates are not permitted by Seller.
- Waivers: All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability: If any provision of this Agreement is determined to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- No Agency: Each of the parties to this Agreement are independent contractors and nothing contained herein shall be construed as creating any agency, partnership or other form of join enterprise between the parties.
- Construction: The headings of Sections of this Agreement are for convenience and are not to be used in interpretation. As used in this Agreement the work “including” means “including but not limited to”.
- Entire Agreement: This Agreement, together with any attachments and exhibits hereto, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement shall not be modified expect by a subsequently dated written amendment signed on behalf of the Seller and Purchaser by their duly authorized representatives.
ADDENDUM to Qatalyst, Inc.
Ping/Post Purchase Agreement
Telephone Consumer Protection Act, 42 USC 227 and 47 CFR 64.200 and Do Not Call List Requirements
This ADDENDUM to the Qatalyst, Inc., Ping/Post Purchase Agreement (this “Addendum”), is effective as of January 1, 2016 (“Effective Date”).
Representations and Warranties
Sending Partner represents warrants and agrees that the leads sold to Qatalyst, Inc. pursuant to this Addendum will meet each of the following criteria:
- The leads will not be obtained in violation of any state or federal law, rule, regulation, court order, judgment, decree, or agreement;
- The leads will not be obtained by any unsolicited contacts with consumers;
- The lead will be obtained from individuals who represent that they are specifically interested in obtaining a quote for the applicable type of quotes indicated;
- The lead will be collected from mediums where Sending Party has included notification, through its data collection vehicles, that the individual’s information is being collected for the purposes of obtaining quotes and that the individual may be contacted by agents or carriers;
- The lead will be collected from individuals who have provided prior express written consent required by law or regulation (including, but not limited to, Telephone Consumer Protection Act, 42 USC 227 and 47 CFR 64.200 and Do Not Call List Requirements) so that Qatalyst, Inc. or agents or carriers may call any telephone or mobile phone numbers contained within lead for the purpose of providing quotes or connecting the individual with agents or carriers, including but not limited to through the use of an automatic telephone dialing system or prerecorded voice message
- Sending Party agrees to provide to Qatalyst, Inc., proof of such express written consent for all lead data provided to Qatalyst, Inc., which proof will include, in addition to all other information or evidence reasonably requested by Qatalyst, Inc., a screenshot of the disclaimer and consent language appearing on mediums from which Lead was collected), the IP address of the source of the Lead, and the date and time stamp indicating the time the lead was created;
- Sending Party will utilize record keeping systems that can establish that the prior express written consent referenced in the immediately preceding paragraph can be conclusively established under applicable law or regulation, and legally sufficient evidence of such consent will be maintained by Sending Party and be made available to Qatalyst, Inc. upon request within 48 hours of notification by Qatalyst, Inc. at any time, at least until the conclusion of any applicable statute of limitations under applicable law or regulation, including but not limited to those laws and regulation identified in the immediately preceding paragraph;
- Sending Party will maintain records of leads sold to Qatalyst, Inc. for a period of 5 years.
- The lead will not, to the best of the Sending Party’s knowledge, contain mapping errors, business rule errors and/or invalid consumer data;
- The lead will not include information from individuals, acquired through remarketing programs or otherwise, who previously submitted a request for a quote and did not provide explicit permission to resubmit their information for additional quotes.