THIS LEAD PURCHASE AGREEMENT (THE "AGREEMENT") IS ENTERED INTO, AS OF THE DATE OF YOUR ACCEPTANCE, BY AND BETWEEN CONNECTING THE DOTS (THE "COMPANY") AND YOU (THE "MERCHANT"). BY AGREEING TO THE TERMS SET FORTH HEREIN YOU ATTEST THAT YOU HAVE THE AUTHORITY TO MAKE THIS AGREEMENT ON BEHALF OF THE MERCHANT. ACCORDINGLY, THE COMPANY AND MERCHANT JOINTLY AGREE TO THE FOLLOWING TERMS AND CONDITIONS:
Per the terms of this Agreement, the Company shall use commercially reasonable and legally valid efforts to supply Merchant with Leads pursuant to the terms of this Agreement.
A "Lead" shall be construed to be the contact information for a vetted potential customer (regardless of whether or not such potential customer becomes an actual customer of Merchant).
Leads can be deemed to be exclusive or non-exclusive. Exclusive Leads provided to the Merchant shall restrict the Company from selling them to additional clients that provide the same products and/or services, in the same industry and region, than those provided by the Merchant to its clients. Non-exclusive Leads provided to the Merchant, will allow the Company to sell or otherwise dispose of such non-exclusive Lead to additional providers of the same products/services as Merchant. Leads shall be deemed non-exclusive unless they are specified to be so in the Insertion Order.
Conditions, quantities, and other specifics of the campaign shall be agreed in the Insertion Order document, which is deemed an integral part of this Agreement.
All real‐time campaign changes must be made in writing, and acknowledged by the Company twenty four hours prior to taking affect. Notwithstanding, the Company reserves the right to deliver the Leads to the Merchant as originally agreed upon by the parties or to adjust the price, to which the Merchant must consent before the new campaign changes take place.
Merchant shall pay the Company the applicable Lead and/or campaign price, as established in the Insertion Order. All fees, unless specified otherwise in writing and agreed by the Company shall be paid up-front by the Merchant.
- LEAD GUARANTEE & REPLACEMENT POLICY.
All sales are final and non-refundable except as expressly provided in Lead Guarantee and Replacement Policy that may or may not be specified on the Insertion Order.
- MERCHANT REPRESENTATIONS & COVENANTS; INDEMNIFICATION.
The Merchant represents and warrants that it has full power, right and authority to enter into and carry out its obligations and grant the rights and licenses under this Agreement and that this Agreement constitutes a valid and binding obligation of the Merchant, enforceable against the Merchant in accordance with its terms.
The Merchant represents and warrants that all its actions and requests pursuant to this Agreement shall be made in accordance with all applicable laws.
The Merchant shall ensure that all Leads (and all corresponding underlying Lead information) provided hereunder are used, contacted (via direct mail, email, online or telephone), maintained and accessed by Merchant and/or Merchant's affiliates in compliance with applicable law, including without limitation, the Telemarketing Sales Rule (as amended), the Telephone Consumer Protection Act of 1991, and the CAN-SPAM Act of 2003.
The Merchant: (a) represents and warrants that it has all applicable licenses, applicable insurance (including, without limitation, Workers Compensation and Commercial General Liability Insurance), certifications and accreditation, required to perform the for which the Leads are intended; and (b) shall bear the obligation to make all filings and obtain and maintain any and all necessary and/or applicable governmental approvals or licenses relating to Merchant's business and for the use of the Leads in all such jurisdictions in which it participates. The Merchant hereby agrees to defend and indemnify and hold the Company Harmless from and against, any loss, claim, cost, liability, suit, judgment or expense (collectively, "Claims"), including court costs and reasonable attorney and other professional fees arising out of or in connection with any third party Claim against the Company arising from: (a) a breach of this Agreement by Merchant;(b) any work (including, without limitation, marketing, installation and maintenance work) performed by the Merchant, its agents, employees, subsidiaries and/or affiliates for any Lead provided by the Company; and (c) any misuse or any other situation arising from the use of the Leads by the Merchant
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE COMPANY PROVIDES NO ADDITIONAL WARRANTIES REGARDING THE LEADS AND THE COMPANY'S SERVICES OR THAT THE LEADS AND THE COMPANY'S SERVICES WILL RESULT IN ADDITIONAL BUSINESS OR REVENUE TO MERCHANT OR MERCHANT'S AFFILIATES. THE PROVISIONS OF THIS SECTION 5 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
- INTELLECTUAL PROPERTY.
The Merchant specifically agrees that any leads delivered by the Company under this Agreement shall be the Company´s Intellectual Property.
The Company hereby grants the Merchant, for the duration of this Agreement a non-exclusive, non-transferable, limited license to use any Leads delivered pursuant to this Agreement and any other Insertion Order for purposes of contacting and soliciting such potential consumers about the Merchant's products, services and/or other offerings only. As such, Leads shall be used merely as a potential client list and may not be used for any additional purposes. Selling or storing any information outside of that allowed pursuant to this Agreement shall be deemed a breach and will be sufficient cause to allow the Company to terminate this Agreement and/or suspend service and give rise to any applicable legal actions against the Merchant. The Merchant shall have no rights to grant sublicenses or transfer the Leads without the prior express written approval of the Company. For the avoidance of doubt, the Leads are for the benefit of the Merchant and Merchant shall not transfer any Lead to a third party without the prior express written approval of the Company. Such license shall terminate immediately upon termination of this Agreement for any reason.
- PAYMENT METHOD AND CREDIT CARD AUTHORIZATION.
The Merchant shall elect any of the offered payment methods offered by the Company and does so pursuant to the payment conditions set forth by the Company. In the event that credit card payment is offered by the Company and elected as method of payment by the Merchant, the Merchant acknowledges that any credit card information provided to the Company is complete and accurate and that the Merchant is authorized to use such credit card. Accordingly, the Merchant authorizes the Company to: (a) bill the credit card provided by Merchant for any and all charges and fees, including recurring payments, related to the purchase of Leads as provided in this Agreement; and (b) retain such credit card information until such time as Merchant revokes this authorization. Merchant understands that revoking authorization may be grounds for suspension of Merchant's account unless an acceptable alternative method of payment is established with the Company. The Merchant agrees not to initiate a chargeback with respect to any Lead Fees with the credit card issuer unless Merchant has exhausted all attempts to resolve any disputes directly with the Company. Merchant shall indemnify and hold the Company harmless against any liability pursuant to this credit card authorization. If the Company pays or is required to reimburse any credit card holder any monies paid by the Merchant using that card, the Merchant shall re-pay any paid monies by the Company to the Company, plus a penalty fee equal to three times the money paid by the Company to the credit card holder.
This Agreement may be terminated by any party with thirty (30) days written notice to the other party; however, any termination shall not relieve the parties of any obligation accruing prior to the effective termination date. As such, the Merchant shall pay the Company for any contracted but undelivered Leads during the termination notice period. Except as otherwise provided herein, termination of this Agreement shall terminate all further rights and obligations of the Company and the Merchant hereunder provided that if such termination is based on a breach by a party hereto, the other party shall be entitled to pursue any and all rights it has to redress such breach in law or equity. Except as set forth herein, the provisions as set forth in Sections 4, 5, 7 and 9 herein shall survive the termination and expiration of this Agreement.
- AGED LEADS.
Aged leads generated by CONNECTING THE DOTS prior to October 16, 2013 are NOT compliant with TELEPHONECONSUMER PROTECTION ACT (TCPA) regulations for use with Auto-Dialer, Prerecorded Messaging, or calls/text messaging to Cellular Phones. Aged leads are recommended for Manual calling only and any other form of calling is not recommended.
FOR AGED LEADS, THE MERCHANT IS SOLEY RESPONSIBLE FOR COMPLINCE WITH ALL FEDERAL AND STATE LAWS INCLUDING BUT NOT LIMITED TO THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) REGULATIONS, STATE AND FEDERAL DO-NOT-CALL REGISTRY REGULATIONS, AND DO-NOT- EMAIL/CAN-SPAM REGULATIONS. THE MERCHANT EXPRESSLY ASSUMES THE ENTIRE RISK THAT SOME CONSUMER LEADS PURCHASED MAY CONTAIN OUTDATED PHONE NUMBERS, UNIDENTIFIED CELLULAR NUMBERS, OR OTHER NON-CURRENT CONTACT INFORMATION AND ASSUMES THE RISK THAT THE CONSUMER MAY BE REGISTERED WITH A STATE OR FEDERAL DO-NOT-CALL REGISTRY. THE MERCHANT AND ANY END USER TO WHOM THE MERCHANT PROVIDES ANY AGED LEAD SOLD TO THE MERCHANT UNDER THIS AGREEMENT SHALL VERIFY ALL CONTACT INFORMATION AGAINST SUCH REGISTRY(S) PRIOR TO CONTACTING THE CONSUMER. THE MERCHANT SHALL BEAR ANY AND ALL LIABILITY FOR VIOLATIONS UNDER STATE AND FEDERAL TELEPHONE CONSUMER PROTECTION ACT (TCPA) REGULATIONS DO-NOT-CALL REGULATIONS, AND DO-NOT- EMAIL/CAN-SPAM REGULATIONS.
a. Merchant's Special Warranties. The Merchant agrees to employ due care and attention in handing the Leads (as specified on the Insertion Order). The Merchant agrees to use its name and not that of CONNECTING THE DOTS in pursuing and the Leads and/or contacting any Lead applicant. The Merchant represents and warrants to CONNECTING THE DOTS that it shall not: (i) violate any federal, state, local or foreign law or regulation including, but not limited to, the Federal Telephone Consumer Protection Act (TCPA), The CAN SPAM Act of 2003, the Gramm-Leach-Bliley Act, the Truth in Lending Act, the Real Estate Settlement Procedures Act, the (MARS) Mortgage Assistance Relief Services Rule, Debt Relief Services Rules and Regulations & the (TSR) Telemarketing Sales Rule; (ii) infringe upon or misappropriate any copyright, trademark, patent, trade secret or other intellectual property right or other right, including any individual privacy right of any person or consumer; (iii) disclose the identity of CONNECTING THE DOTS officers, directors, employees and agents. The Merchant agrees to indemnify, defend (including immediate reimbursement of attorneys' fees) and hold harmless CONNECTING THE DOTS, its officers, directors, employees and agents, from and against any claims, actions or demands arising from or related to the breach of the warranties in this paragraph or other breach of the section pertaining to Aged Leads.
b. Email Delivery. Due to the nature of spam filter programs and ISP level email filtering, CONNECTING THE DOTS is unable to guarantee that emails sent from its servers or those of its affiliated entities will be received by the Merchant's email account. CONNECTING THE DOTS is not responsible for emails sent by CONNECTING THE DOTS that do not make it into the Merchant's email account, its only obligation is to send the email. All leads will be available in the Merchant's online interface. CONNECTING THE DOTS recommends that the Merchant set up a lead management database system in order to ensure that leads are delivered and routed successfully. CONNECTING THE DOTS can refer several lead management companies that are easily integrated with CONNECTING THE DOTS' service. The Merchant should contact their account representative for details.
c. Privacy Statement. The Merchant represents and warrants that both the Merchant, its agents and contracting partners utilize a lawful privacy disclosure policy statement in connection with the solicitation, receipt and use of any information from any person in connection with Leads. The Merchant agrees to provide a copy of all applicable privacy statements, including those on the Internet, to CONNECTING THE DOTS for CONNECTING THE DOTS review and comment. CONNECTING THE DOTS may require changes.
d. No Representations. CONNECTING THE DOTS has not made and does not hereby make any representations, guarantees or warranties whatsoever with regards to Aged Leads.
e. Merchant's TCPA Understanding and Disclaimer. CONNECTING THE DOTS HAS DISCLOSED TO THE MERCHANT THAT AGED LEADS PURCHASED BY THEM UNDER THE TERMS OF THIS PURCHASE AGREEMENT, MAY CONTAIN LEADS FROM CONSUMERS REGISTERED WITH STATE AND/OR FEDERAL DO-NOT-CALL REGISTRIES AND WERE RECEIVED BY CONNECTING THE DOTS PRIOR TO RECENT CHANGES IN THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) EFFECTIVE OCTOBER 16, 2013 RESTRICTING THE USE OF AUTO DIALER TECHNOLOGY, PRE-RECORDED MESSAGING, AND CALLS OR SMS TEXT MESSAGING TO CELLULAR PHONES WITHOUT THE EXPRESS WRITTEN CONSENT OF THE CONSUMER FOR THE BROKER TO CONTACT THEM BY TELEPHONE. AGED LEADS ARE NOT PRE-SCRUBBED BY CONNECTING THE DOTS AGAINST ANY STATE OF FEDERAL DO-NOT CALL REGISTRY LISTINGS. THE MERCHANT AGREES TO PURCHASE THE ANY AGED LEADS AS-IS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES FROM THE CONNECTING THE DOTS COMPANIES, AND WITH THE AFOREMENTIONED UNDERSTANDING THAT THE LEADS PURCHASED ARE AGED LEADS THAT WERE NOT OBTAINED UNDER PROCEDURES INTENDED TO COMPLY WITH THE CURRENT REQUIREMENTS OF THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) REGULATIONS AS OF OCTOBER 16, 2013. THE MERCHANT UNDERSTANDS THAT CALLING CONSUMERS BASED UPON THE CONTACT INFORMATION CONTAINED IN THE AGED LEADS PROVIDED, THROUGH THE USE OF AUTO-DIALER TECHNOLOGY OF ANY KIND, PRERECORDED MESSAGING, OR CALLS/TEXT MESSAGING TO CELLULAR PHONES, ARE AT THE MERCHANT'S SOLE RISK. THE MERCHANT ASSUMES ANY AND ALL LIABILITY AS A RESULT OF THEIR VIOLATING THE TCPA REGULATIONS, AND OTHER STATE AND FEDERAL PRIVACY LAWS. THE MERCHANT AGREES TO INDEMNIFY CONNECTING THE DOTS AGAINST SUCH LIABILITY RESULTING FROM THE MERCHANT'S ACTIONS OR INACTIONS IN VIOLATION OF LAW AS SET FORTH IN THIS AGREEMENT.
f. Survival. The provisions of this section shall survive the termination or expiration of this Agreement.
- LIMITATIONS ON LIABILITY.
EXCEPT IN CONNECTION WITH AN OBLIGATION OF INDEMNIFICATION HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTIES' AGGREGATE LIABILITY TO THE OTHER PARTY AND ALL THIRD PARTIES, INCLUDING ATTORNEY'S FEES, IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED AN AGGREGATE LIMIT OF THE TOTAL SUM OF LEAD FEES ACTUALLY PAID TO THE COMPANY BY THE MERCHANT PURSUANT TO THE TERMS OF THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE CLAIM GIVING RISE TO ANY SUCH LIABILITY, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED. EXCEPT IN CONNECTION WITH AN OBLIGATION OF INDEMNIFICATION HEREIN ANDTO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES, OR LOST PROFITS, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE DAMAGES WERE FORESEEABLE. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY PURSUANT TO OR BASED ON THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE EARLIER OF (A) THE DATE OF LAST PROVISIONING OF LEAD SERVICES OR (B) THE TERMINATION OF THIS AGREEMENT.
- APPLICABLE LAW AND ARBITRATION.
This Agreement, all claims or causes of action (whether in contract or tort) that may be based upon or arise out of or relate to this Agreement or relate to the negotiation, execution or performance of the Agreement, and any additional or subsequent Lead purchases between the Company and the Merchant pursuant to this Agreement, hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of New York, United States of America.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York City, NY before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
a. Independent Contractor. The relationship between the Company and the Merchant established by this Agreement is that of independent contractor and shall each conduct its respective business at its own initiative, responsibility and expense. Furthermore, the parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm's-length negotiations.
b. Logo Usage. The Merchant agrees that the Company may include Merchant's name including any trade name, then-current trademark or service mark, and logo on the Company's (i) publicly available customer list and (ii) marketing materials.
c. Amendment. This Agreement may be amended and revised in a writing signed by both parties (which may include, without limitation, email). From time to time, the Company may update or revise this Agreement. Merchant's continued purchase of Leads constitutes acceptance of these changes.
d. Waiver. The failure of any party hereunder to insist upon strict performance of any terms or provisions of this Agreement shall not be construed as a waiver or relinquishment for the future of any such terms or provisions. Rather such terms and provisions shall continue and remain in full force and effect. No waiver shall be deemed to have been made unless the waiver is made in writing and signed by the party making the waiver.
e. Non-Disparagement. The Merchant agrees to take no action which is intended, or would reasonably be expected, to harm the Company or its or their reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity, loss of business or undue attention to the Company. Breach of this clause shall give rise to a fine of one hundred and fifty thousand dollars as compensation to the Company, in addition to reimbursement of any damages and loss of profits suffered by the Company. In the event the Company has to begin legal actions to recover under this Agreement, the fine, damages and loss of profits to be paid by the Merchant shall be doubled and the Merchant shall pay any and all reasonable legal expenses the Company incurs.
f. Intent to Be Bound. The MERCHANT ACKNOWLEDGES THAT MERCHANT'S ELECTRONIC SUBMISSION CONSTITUTES MERCHANT'S AGREEMENT AND INTENT TO BE BOUND BY THE TERMS HEREIN.
g. Severability. If any term or provision is held to be unenforceable or invalid to any extent, the remainder of this Agreement shall not be affected and each other term or provision of this Agreement shall be valid to the fullest extent permitted by law. written or oral, between the parties. No amendment or modification of the terms and conditions contained herein shall be binding unless agreed upon in writing and signed by both parties.
h. Entire Agreement. This Agreement contains the entire agreement between the parties and supersedes all previous agreements and proposals, oral or written, and all negotiations, representations, warranties, conversations, or discussions between the parties related to the Company's Lead services. Merchant acknowledges it has not relied on any representations or statements by the Company not included in this written Agreement. The parties hereto have voluntarily agreed to define their rights, liabilities and obligations respecting the Company's services exclusively in contract pursuant to the express terms and provisions of this Agreement.