Lead Purchase Agreement
THIS LEAD PURCHASE AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO, AS OF THE DATE OF THE LEAD CONTRACT, BY AND BETWEEN NUTREND MEDIA (THE “COMPANY”) AND THE “MERCHANT”. THIS AGREEMENT AND THE ACCOMPANYING LEAD CONTRACT SET FORTH THE TERMS WITH RESPECT TO THE COMPANY’S SERVICES. 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 efforts to supply Merchant with Leads. Company shall submit any Leads generated pursuant to this Agreement to Merchant after verifying such Leads in accordance with applicable Company standards and internal processes.
(a) A “Lead” shall be the contact information for a potential customer (whether or not such potential customer becomes an actual customer of Merchant). The Company shall use commercially reasonable efforts to include the following information for each Lead: name, address, contact information, and any other information provided by the Company in its sole discretion based on the project type or the Filtering Criteria (as defined below), as of the time such information is supplied and submitted to the Company by the potential consumer.
(b) Leads shall be filtered based on the filtering criteria (Lead Type, geography, exclusivity, or other project specific criteria) as set forth on a Lead Contract (the “Filtering Criteria”). Merchant may modify the Filtering Criteria, from time to time, via (i) the Company’s online client portal or (ii) by written communication to the Company and confirmed by the Company (a “Confirmed Communication“). All lead filtering is done based on data submitted by the potential customer whether or not that data is proven to be accurate. In certain instances, the Company may update customer data based on information provided, in an effort to ensure increased accuracy of such data.
(c) For any non-exclusive Lead provided to Merchant, the Company may sell or otherwise dispose of such non-exclusive Leads of the same products/services as Merchant. For any exclusive Lead provided to Merchant, the Company may sell or otherwise dispose of such exclusive Lead to Merchant only.
(d) Merchant may return a Lead in accordance with the Company’s then applicable Lead Return Policy, which may be revised from time to time in the sole discretion of the Company.
(a) The Company shall supply Leads to Merchant, at the Company’s sole discretion, based on (i) Merchant’s then available account balance with the Company (the “Merchant Account”) and (ii) the Merchant’s current price per Lead (the “Lead Price”) bid as set forth on any Lead Contract or as indicated by the Merchant via the Company’s online client portal or a Confirmed Communication. The Merchant Account shall be reduced by the applicable Lead Price for each Lead submitted to Merchant according to delivery methods provided by Merchant, regardless of whether or not the Merchant acts on or contacts such Lead. Merchant may choose to add to its Merchant Account via the online portal or at the sole discretion of the Company.
(b) Merchant shall pay the Company the applicable Lead Price, as set forth on any Lead Contract or selected by Merchant via the online portal or a Confirmed Communication, for each Lead submitted to Merchant (collectively, the “Lead Fees”). Merchant shall not be required to pay for Leads that have been returned by Merchant, and accepted as a valid return by the Company, pursuant to the Company’s then applicable Lead Return Policy. In the event of a dispute with respect to the number of Leads and qualification level of Leads submitted to Merchant, the Company’s tracking and computer systems shall control.
4. PAYMENT & INVOICING.
(a) Unless specified otherwise in a Lead Contract, Merchant shall pre-pay for all Leads ordered. For any Lead Fees not pre-paid by Merchant, the Company may invoice Merchant, semi-monthly, requesting payment of such unpaid Lead Fees incurred during the applicable period. Merchant shall pay the Company the unpaid Lead Fees upon receipt of such invoices, unless another payment date is set forth in writing by Company and Merchant.
(b) The Company reserves the right to withhold any Leads or its performance if Company has not been paid in accordance with the terms set forth herein or as otherwise set forth in writing by Company and Merchant.
(c) The Company reserves the right to withhold any Leads or its performance under this Agreement if the Company has not been paid in accordance with the terms set forth herein.
Merchant may modify the applicable Lead Price, Filtering Criteria, and Lead Return Policy from time to time, via (i) the Company’s online client portal or (ii) by a Confirmed Communication. In each instance, such modification shall deemed to be an amendment to and incorporated into the Lead Contract, as applicable, and the Company shall be permitted to make such modification to Merchant’s service account. In the event of conflicting changes by Merchant, the Company shall implement the most recent change by Merchant to Merchant’s service account. Merchant acknowledges that any such changes may affect the supply of Leads to Merchant. Notwithstanding any modifications made by Merchant to its service account, this Agreement and the Lead Contract (including revisions, if any) shall govern the purchase of all Leads by Merchant from the Company.
6. MERCHANT REPRESENTATIONS & COVENANTS.
(a) 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 Merchant in accordance with its terms.
(b) Merchant shall ensure that all Leads (and all corresponding underlying Lead information) provided hereunder are used, contacted (via direct mail, email 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.
(c) Merchant (1) 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 work intended for the Leads and (2) 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.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE LEADS AND THE COMPANY’S LEAD SERVICES ARE PROVIDED “AS IS.”
EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, OR IMPLIED, WHETHER OR NOT STATUTORY, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING, USAGE, OR TRADE. THE PROVISIONS OF THIS SECTION 7 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
FURTHERMORE, THE COMPANY PROVIDES NO WARRANTIES REGARDING (A) THE ACCURACY OF ANY LEAD DATA, (B) WHETHER THE LEADS AND THE COMPANY’S SERVICES WILL RESULT IN ADDITIONAL SALES, BUSINESS OR REVENUE TO MERCHANT OR MERCHANT’S AFFILIATES, OR (C) THE NUMBER LEADS THE MERCHANT MAY RECEIVE.
8. INTELLECTUAL PROPERTY.
The Company hereby grants to Merchant for the term of this Agreement a non-exclusive, non-transferable, limited license to use the Leads for purposes of contacting and soliciting such potential consumers about Merchant’s products/services only. Merchant shall have no rights to grant sub-licenses or transfer the Leads to any third parties 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 re-sell or otherwise transfer any Lead to any third party without the prior express written approval of the Company. Such license shall terminate immediately upon termination of this Agreement for any reason.
9. CREDIT CARD AUTHORIZATION.
Merchant agrees to the payment conditions Merchant selects via the online portal or via Confirmed Communication. Merchant acknowledges that any credit card information provided to the Company is complete and accurate and that Merchant is authorized to use such credit card. Accordingly, Merchant authorizes the Company to (i) 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 (ii) 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. 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 further understands that initiating a chargeback does not extinguish your obligation to pay. Merchant shall indemnify and hold the Company harmless against any liability pursuant to this credit card authorization.
(a) Merchant hereby agrees to defend and indemnify the Company against, and hold the Company harmless from any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including court costs and reasonable fees of attorneys and other professionals, whether or not involving a third party claim, which arise out of or relate to (1) any failure of Merchant to perform its obligations under this Agreement or any failure of Merchant to perform its obligations under this Agreement in accordance with all applicable state and federal laws, rules and regulations, (2) any work (including, without limitation, marketing, installation and maintenance work) performed by Merchant, its agents, employees, subsidiaries and/or affiliates in connection with any Lead provided by the Company, or (3) any negligent, reckless, or intentionally wrongful acts or omissions on the part of Merchant.
(b) The Company hereby agrees to defend and indemnify the Merchant against, and hold Merchant harmless from any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including court costs and reasonable fees of attorneys and other professionals claimed by third parties which arise out of or relate to (a) any failure of the Company to perform its obligations under this Agreement or (b) any negligent, reckless, or intentionally wrongful acts or omissions on the part of the Company.
(c) The indemnified party shall provide notice promptly to indemnifying party of any actual or threatened claim of which the indemnified party becomes aware (“Claim Notice”). The indemnifying party shall have sole control of such defense unless the indemnifying party fails or refuses to assume the defense of the Claim within five (5) business days of receiving the Claim Notice, in which case the indemnified party may assume defense of the claim without the indemnifying party’s participation. If indemnified party assumes control of the defense, indemnifying party shall remain responsible to indemnified party for any Losses, as applicable, indemnified under this Section and any expenses incurred by indemnified party. No settlement may be consummated without the express written authorization of the indemnified party unless such settlement, compromise or consent: (i) includes an unconditional release of indemnified party from all liability arising out of such claim; (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of indemnified party; and (c) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains or interferes with the business of indemnified party or any of indemnified party’s affiliates.
This Agreement may be terminated upon seven (7) days written notice to the other party; however, such termination shall not relieve the parties of any obligation accruing prior to the effective termination date. This Agreement shall terminate automatically upon the earlier of (x) the bankruptcy, cessation of business, or dissolution of either party or (y) six (6) months following the date of last delivery of Leads to Merchant. For the avoidance of doubt, 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 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. The provisions as set forth in Sections 6, 7, 10 and 12 herein shall survive the termination and expiration of this Agreement.
(a) Independent Contractor. The relationship between the Company and 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. 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) Forum and Choice of Law. 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 (including an representation or warranty made in connection with this Agreement), and any additional or subsequent Lead purchases between the Company and Merchant hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of California. This Agreement shall be deemed to have been entered into and performed in Australia.
(c) Arbitration. 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 Melbourne, Australia before one arbitrator who shall be a retired judge. 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 and the Federal Arbitration Act (“FAA”). Judgment on the any Arbitration Award may be entered in any court having jurisdiction over the matter arbitrated. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
(d) Limitation of Liability. EXCEPT IN CONNECTION WITH AN OBLIGATION OF INDEMNIFICATION AND MERCHANT’S PAYMENT OBLIGATIONS SET FORTH 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 MERCHANT PURSUANT TO THE TERMS OF THIS AGREEMENT IN THE THREE (3) 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 AND MERCHANT’S PAYMENT OBLIGATIONS SET FORTH HEREIN AND TO 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 (X) DATE OF LAST PROVISIONING OF LEAD SERVICES OR (Y) THE TERMINATION OF THIS AGREEMENT.
(e) 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 and the parties hereto expressly disclaim that they are entitled to any remedies not expressly set forth in this Agreement.
(f) Amendment. Merchant may modify the Filtering Criteria, from time to time, via (i) the Company’s online client portal or (ii) a Confirmed Communication. Furthermore, any Lead Contract may be amended and revised, from time to time, in a writing signed by both parties (which may include, without limitation, email). In each instance above, such revision will be deemed to be a part of and incorporated into any executed Lead Contract, as applicable. The terms of this Agreement may be amended and revised, from time to time, in a writing signed by both parties (which may include, without limitation, email).
(g) Conflict. Each executed Lead Contract shall incorporate this Agreement. In the event of a conflict between the Lead Contract (including subsequent any written modifications or changes via the Company’s online client portal) and this Agreement, the terms of this Agreement shall govern. A Lead Contract (including subsequent any written modifications or changes via the Company’s online client portal) shall take precedence over the Agreement ONLY where a Lead Contract, as revised, (i) specifically references the Agreement section to be modified and (ii) is signed by the Company.
(h) 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.
(i) 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.
(j) Force Majeure. Each party shall be excused from performance and shall not be considered to be in default with respect to any obligation hereunder, except for Merchant’s obligation to pay money in a timely manner for Leads delivered to Merchant or other liabilities actually incurred by the Company, if and to the extent that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force event.