Parasol Leads Lead and Call Transfer Sales Agreement
This agreement hereby incorporated into and made an integral part of each Order executed on the Platform by User, and each Order, when combined with these Data Terms and Conditions, constitutes a legal agreement between User and the Parasol Leads (each, the "Agreement"). The Agreement specifies the terms under which User may license and/or purchase Leads. Please read the Agreement carefully, because by accessing the Leads, clicking "I Agree," or otherwise manifesting assent to the Agreement, User agrees to be bound by the terms of the Agreement. The person executing the Agreement on behalf of User represents that he or she is an authorized representative of User capable of binding User to the Agreement.
The definitions for some of the defined terms used in the Agreement are set forth in Section 1. The definitions for other defined terms are set forth elsewhere in the Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, User and the Lead Providers (collectively, the "Parties" and each, a "Party") hereby agree as follows:
DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
- "Advertiser" means an advertising partner of Purchaser.
- "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
- "Applicable Laws" means all applicable international, national, state, and federal laws, rules, and regulations, including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule, 16 CFR 310 et seq., and those governing the National Do Not Call Registry.
- "Call Transfer" means the transfer of a Phone Call Request to Purchaser.
- "Confidential Information" means the terms of this Agreement and any non-public information or material regarding a Party's legal or business affairs, financing, customers, properties, pricing, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the "Receiving Party"); (ii) is documented as being known to the Receiving Party prior to its disclosure by the other party (the " Disclosing Party"); (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
- "Customer" means a prospective customer of an Advertiser who has initiated a Phone Call Request and who has provided affirmative consent to receive e-mail advertising messages and/or other marketing communications.
- "Duplicate Deliverable" means a Lead and/or a Call Transfer, as applicable, submitted by or on behalf of Parasol Leads that reproduces all or substantially of the uniquely identifying data of a Customer whose information was previously submitted to Purchaser by or on behalf of Parasol Leads and for which Purchaser has paid, or accrued an obligation to pay, Parasol Leads.
- "Expired Lead" means any Lead submitted to Purchaser more than two (2) minutes after the subject Phone Call Request was submitted by the applicable Customer.
- "Fraudulent Deliverable" means a Lead and/or Call Transfer, as applicable, submitted by or on behalf of Parasol Leads that is the product of incentivized marketing, fraud, or manipulation of information on the part of Parasol Leads.
- "Invalid Deliverable" means a Lead and/or Call Transfer, as applicable, submitted by or on behalf of Parasol Leads that: (i) does not contain all of the information required as set forth in the applicable IO; or (ii) is not based on a valid Phone Call Request.
- "IO" means an insertion order that is entered into by the Parties pursuant to this Agreement that specifies the Advertisers, the Customers, the Leads, the Call Transfers, the prices for such Leads and Call Transfers, the Advertiser's applicable products and services, and the Transfer Numbers for a specific purchase or series of purchases. A form IO is attached hereto as Schedule A.
- "Leads" means the leads to be delivered to Purchaser pursuant to an IO.
- "Phone Call Request" means an indication from a Customer to receive a telephone call from Purchaser or Advertiser or a phone call from a Customer, in either case with respect to specific products and/or services set forth in an IO.
- "Platform" means Parasol Leads designated proprietary technological platform.
- "Purchaser Content" means any data or other materials that Purchaser makes available to Parasol Leads pursuant to this Agreement, including, without limitation, the trade names, trademarks, language, and creative to be used by Parasol Leads and/or its agents and suppliers in connection with generating Phone Call Requests.
- "Transfer Number" means the number to which Parasol Leads shall send a Call Transfer, as set forth in the applicable IO.
- "Valid Call Transfer" means a Call Transfer that is not a Duplicate Deliverable, Invalid Deliverable, or Fraudulent Deliverable.
- "Valid Lead" means a Lead submitted by or on behalf of Parasol Leads based on a valid Phone Call Request that contains valid and materially complete information submitted by a Customer and is not an Expired Lead, Duplicate Deliverable, Invalid Deliverable, or Fraudulent Deliverable.
- PROVISION OF LEADS AND CALL TRANSFERS . Parasol Leads shall generate (or procure from a third-party supplier) and deliver to Purchaser the Leads and/or Call Transfers as set forth in the applicable IO. Where a Customer submits a Phone Call Request with Parasol Leads and/or its agents and suppliers, and such Customer then provides the requisite Lead information in connection with such Customer's Phone Call Request, Parasol Leads shall: (i) provide such Lead to Purchaser via in the format determined by Parasol Leads; and (ii) where requested in the applicable IO, execute a Call Transfer via a live call transfer by and through the Platform. Parasol Leads shall use commercially reasonable efforts to submit no Expired Leads to Purchaser. Parasol Leads shall not use any incentivized marketing or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points, or other compensation to be earned in connection with generating Leads, associated Phone Call Requests, and/or Call Transfers.
- PURCHASER CONTENT . Purchaser shall provide Parasol Leads with all Purchaser Content. No other creative may be used by Parasol Leads, its agents, or its suppliers without first obtaining the prior express written permission of Purchaser, with such permission not to be unreasonably withheld, conditioned, or delayed. In the event that Purchaser desires to cancel the use of any Purchaser Content, Parasol Leads shall cease the use of same no more than twenty-four (24) business hours following Purchaser's written request. The Parties understand and agree that: (i) as between the Parties, Purchaser is the sole owner of any and all intellectual property rights associated with the Purchaser Content; (ii) Parasol Leads shall have no responsibility or liability with respect to the Purchaser Content; and (iii) Purchaser shall obtain all rights, permissions, and licenses for Parasol Leads, its agents, and suppliers to use the Purchaser Content as set forth herein without payment of any fees or expenses or the performance of any obligations other than those set forth herein.
- REJECTION OF LEADS/CALL TRANSFERS . Parasol Leads must, upon the request of Purchaser, produce the name, date, time, IP address, and referral URL where the applicable Consumers submitted the Phone Call Request and associated Lead data, as well as the telephone call associated with the Call Transfer. Where Purchaser reasonably suspects that a Lead and/or Call Transfer, as applicable, submitted by Parasol Leads is an Invalid Deliverable, Purchaser shall notify Parasol Leads thereof within ten (10) business days of Purchaser's receipt of such Lead and/or Call Transfer; provided, however, that Purchaser shall not lose its dispute rights where Parasol Leads has committed fraud or otherwise acted to conceal the defective nature of applicable Invalid Deliverables. If Parasol Leads receives notice of an Invalid Deliverable from Purchaser within such ten (10) business day period, the Parties shall investigate such Lead and/or Call Transfer, as applicable, and seek to resolve the matter in good faith within ten (10) business days of Parasol Leads's receipt of notice thereof. If the Parties acting together in good faith determine that such Lead and/or Call Transfer was a Valid Lead or Valid Call Transfer, as applicable, then no further action shall be taken. If the investigation reveals that the Lead and/or Call Transfer was an Invalid Deliverable, Parasol Leads shall credit Purchaser's account for the amount of the subject Invalid Deliverable where Purchaser has already paid for it or, in the alternative, Purchaser's payment obligations shall be excused with respect to such Invalid Deliverable where Purchaser has not yet made payment. Where the Parties cannot agree, Parasol Leads's good faith determination shall control in all respects.
- OWNERSHIP/EXCLUSIVITY . Following delivery and payment for same, Purchaser shall have sole and exclusive ownership of any and all Leads, Phone Call Requests, and/or Call Transfers. Parasol Leads shall not: (i) transfer, license, rent, sell, or otherwise distribute any such Leads, Phone Call Requests, and/or Call Transfers to any third party; or (ii) use such Leads, Phone Call Requests, and/or Call Transfers on its own behalf in any manner whatsoever without obtaining the prior express written consent of Purchaser.
FEES AND PAYMENT
- Payment Terms . In connection with each Order, the applicable Fees for such Order shall be automatically applied and deducted from the remaining balance on the Account. All Fees shall be in U.S. Dollars. User sets the initial balance on the Account, and User may change the balance at any time and elect to have the balance automatically replenished, as permitted by the functionality of the Platform.
- Late Payments . In the event Purchaser fails to timely or completely pay any amount due Parasol Leads pursuant to this Agreement (except for amounts that are being disputed by Purchaser in good faith), interest at the rate of one and one half percent (1.5%) per month will accrue on all past due amounts until such amounts, including accrued interest, are paid in full. Purchaser shall promptly reimburse Parasol Leads for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees actually incurred by Parasol Leads, to the extent necessitated by a refusal by Purchaser to pay Parasol Leads any amounts as and when due that are not being disputed by Purchaser in good faith. In the event that any undisputed payment due to Parasol Leads is over thirty (30) days past due, such failure to pay will be considered a material breach of this Agreement, and Parasol Leads will have the right to pursue all other legal and equitable remedies available to it.
TERM AND TERMINATION .
- Term . The initial term of this Agreement begins on the Effective Date and will continue for one (1) year, unless terminated in accordance with Section 7.2 (the "Initial Term"). Upon expiration of the Initial Term or any Renewal Term, as applicable, this Agreement will automatically renew for successive one (1) year periods (each, a "Renewal Term" and collectively with the Initial Term, the "Term"), unless either Party provides the other with written notice of non-renewal at least forty-five (45) days prior to the expiration of the then-current term.
- Termination . This Agreement may be terminated only as follows: (i) in the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement by giving thirty (30) days prior, written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach before the expiration of such thirty (30) day period; (ii) this Agreement is terminable immediately without notice by a Party if the other Party: (a) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (b) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (c) makes an assignment for the benefit of creditors; or (d) undergoes any dissolution or cessation of business; and (iii) either Party may terminate this Agreement for any reason or no reason by giving two (2) days prior, written notice to the other Party.
- Effect of Expiration or Termination . Upon expiration or termination of this Agreement: (i) Purchaser shall pay Parasol Leads for all amounts due and payable hereunder as of the effective date of termination or expiration; (ii) all rights granted hereunder will immediately cease; and (iii) each Party shall either return to the other Party (or, at such other Party's instruction, destroy and provide such other Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such other party's Confidential Information that are in its possession or control.
- Survival . The following provisions will survive expiration or termination of this Agreement: Section 1 ("Definitions"), Section 5 ("Ownership/Exclusivity"), Section 7.3 ("Effect of Expiration or Termination"), Section 8 ("Confidentiality"),Section 9.3 ("Disclaimer"), Section 10 ("Limitation of Liability"), Section 11 ("Indemnification"), Section 12 ("General Provisions"), and this Section 7.4 ("Survival").
- Use and Disclosure of Confidential Information .. The Receiving Party will, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party's performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section 8.4 below, restrict disclosure of such Confidential Information within the Receiving Party's organization to only those employees and consultants of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party's performance of this Agreement; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so; provided, however, that the Parties may disclose the terms of this Agreement if such disclosure is in connection with any audit, financing transaction, or due diligence inquiry provided the recipients are subject to obligations of confidentiality at least as restrictive as those contained herein.
- Protection of Confidential Information . The Receiving Party will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
- Compliance by Personnel . The Receiving Party will, prior to providing any employee or consultant access to any Confidential Information of the Disclosing Party, inform such employee or consultant of the confidential nature of such Confidential Information and require such employee or consultant to comply with the Receiving Party's obligations hereunder with respect to such Confidential Information. The Receiving Party will be responsible to the Disclosing Party for any violation of this Section by any such employee or consultant.
- Required Disclosures . In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its best efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information..
REPRESENTATIONS AND WARRANTIES; DISCLAIMER .
- Mutual Representations and Warranties . Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) it shall comply with all Applicable Laws in the performance of its obligations or exercise of its rights under this Agreement.
- Disclaimer . EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE LEADS, THE CALL TRANSFERS, THE PURCHASER CONTENT, THE PLATFORM, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT EITHER PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- LIMITATION OF LIABILITY . EXCEPT IN CONNECTION WITH A PARTY'S INDEMNITY OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR PURCHASER'S FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE MONIES PAID BY PURCHASER HEREUNDER DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
- Indemnification. Each Party shall defend, indemnify, and hold harmless the other Party and the other Party's shareholders, partners, officers, directors, employees, agents, and assigns (collectively, the "Indemnified Parties") from and against any liabilities, awards, damages, losses, costs, and expenses, including, but not limited to, reasonable attorneys' fees incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding (each, a "Claim") to the extent arising from: (i) the gross negligence or willful misconduct of such Party; and/or (ii) such Party's breach of any of its representations or warranties under this Agreement.
- Procedure . The Indemnified Parties will provide the indemnifying Party with reasonably prompt notice of Claims, permit the indemnifying Party through mutually acceptable counsel to answer and defend Claims, and provide the indemnifying Party with reasonable information and assistance, at the indemnifying Party's expense, to help the indemnifying Party defend Claims. The Indemnified Parties will have the right to employ separate counsel and participate in the defense of any Claim at their own expense. The indemnifying Party will not agree to any stipulation, admission, or acknowledgment of any fault, guilt, wrongdoing, or liability on the part of any Indemnified Party without the applicable Indemnified Party's prior written consent. An indemnifying Party will not settle any Claim on any Indemnified Party's behalf, or publicize any settlement, without the Indemnified Party's prior written permission, which shall not be unreasonably withheld, conditioned, or delayed.
GENERAL PROVISIONS .
- Assignment . Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
- Force Majeure . Each Party shall be excused from the performance of its obligations under this Agreement and any delay or failure in performance by such Party shall not be grounds for termination of this Agreement for cause or give rise to any liability for damages, to the extent that such Party is prevented from performing due to a cause that is beyond its reasonable control, including, but not limited to, an act of God, act or omission of the other Party, act of any government or regulatory body (whether civil or military, domestic or foreign), fire, explosion, flood, earthquake or other natural or man-made disaster, epidemic, sabotage, war, riot, civil disturbance, strike, lockout, labor dispute, loss of electrical or other power or telecommunications equipment, or line failure (each a "Force Majeure Event"). Each Party agrees to use commercially reasonable and diligent and determined efforts to minimize the length and effects of delays that occur due to the occurrence of a Force Majeure Event. Each Party agrees to provide prompt notice to the other Party to the extent such Party is relying or expects to rely on the provision of this subsection to excuse its delay or failure to perform.
- Waiver . No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
- Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard for choice of law provisions thereof.
- Exclusive Forum . The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of Nevada, County of Washoe for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
- Notices . All notices required under this Agreement (other than routine operational communications) must be in writing. Notices shall be effective upon: (i) actual delivery to the other Party, if delivered in person, or by facsimile, or by national overnight courier; or (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid.
- Independent Contractors . The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venture, nor legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
- Severability . If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
- Complete Understanding . This Agreement, , and any executed IOs constitute the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written.
- Counterparts . This Agreement and any IO may be executed in counterparts (which may be exchanged by facsimile or PDF), each of which will be deemed an original, but all of which together will constitute the same Agreement.
IN WITNESS WHEREOF , the Parties have caused this Agreement to be executed by their duly authorized representatives.