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LEAD BUYER TERMS AND CONDITIONS
Lead Purchase Agreement
This Lead Purchase Agreement ("Agreement") is between VMRD, Inc., a Pennsylvania Corporation (“VMRD, Inc”), and the undersigned party (Lead Buyer). Each of VMRD, Inc and Lead Buyer are from time to time referred to herein as a "Party" and collectively as the "Parties."
WHEREAS, VMRD, Inc is the owner and developer of websites where consumers can obtain information for quotes related to a variety of products;
WHEREAS, VMRD, Inc and Lead Buyer desire to create a relationship whereby consumers visiting the website operated by VMRD, Inc (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”). VMRD, Inc 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 VMRD, Inc 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:
1. “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.
2. “Consumer” means any individual who submits a request for information form.
3. “Consumer Information” means the information obtained from a consumer who submits a request for information form.
4. “Personal/Installment Loan Lender” means Lead Buyer or a third party who purchases Leads from Lead Buyer with the intent of (i) providing an extension of credit to a Consumer (a “Personal/Installment Loan”), or (ii) solely to the extent permitted herein, reselling such Leads to other Personal/Installment Loan Lenders or providers.
5. “Lead” means Consumer Information obtained from a Request for information form.
6. “Person” means any individual, corporation, partnership, governmental body or other entity.
7. “Request for information form” means VMRD, Inc’s Personal/Installment Loan request form.
Purpose and Scope; Exclusive Leads. During the Contract Term (as defined below), VMRD, Inc 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 Business/Installment Loan Lenders, subject in all respects to the limitations and restrictions on such sale set forth herein. Lead Buyer agrees to pay VMRD, Inc for such Leads as provided in this Agreement. For the avoidance of doubt, (i) VMRD, Inc 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. VMRD, Inc 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 VMRD, Inc separately. If Lead Buyer identifies any purchased Lead as fraudulent or otherwise invalid, Lead Buyer must provide VMRD, Inc 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. 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 VMRD, Inc. If Lead Buyer does not scrub a lead within three (3) days after the Lead sale, after having notified VMRD, Inc 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.
Lead Buyer’s Responsibilities and Obligations.
1. Use of Leads. Lead Buyer expressly acknowledges and agrees that Lead Buyer may use the leads purchased from VMRD, Inc for the sole purpose of providing the consumer with a Business/Installment Loan product and no other unrelated products of any kind.
2. Ownership of Leads. As between the parties, Lead Buyer will retain exclusive ownership of all Leads acquired from VMRD, Inc hereunder under this or another exclusive agreement between the Parties.
3. Marketing to Leads. Marketing of any kind , including but not limited to cell phone marketing (text messages), email, or physical mailing, to Leads that Lead Buyer does not purchase and pay for is expressly prohibited. If VMRD, Inc discovers such marketing by Lead Buyer, Lead Buyer will be billed for every Lead that VMRD, Inc submitted to Lead Buyer at the highest possible monetary valued integration tier at which the Lead(s) in question were submitted.
4. Lender Interface and Lead Buyer's Responsibility for Filter Updates.
Non-Update Policy. VMRD, Inc will not be under any obligation to: (a) update filters for Lead Buyer outside of setting initial filters for Lead Buyer prior to going live; (b) schedule outages for Lead Buyer for holidays; (c) update hourly/daily lead caps; or (d) perform any updates to Lead Buyer's filters that are readily available in the VMRD, Inc interface. To the contrary, Lead Buyer will be responsible of performing all such updates and assumes responsibility for lack of any such updates even if Lead Buyer has alerted VMRD, Inc to any such changes via email, phone, or any other means.
2. Lead Buyer's Responsibility. Lead Buyer will be responsible of doing all filter, lead caps, scheduling outages, and other such updates and will take full responsibility for lack of any such updates even if Lead Buyer has alerted VMRD, Inc to any such changes via email, phone, or any other means.
5. Price and Payment Terms. The initial cost per lead ("CPL") for the Leads to be provided will be set forth between VMRD, Inc and Lead Buyer, prior to leads being sent from VMRD, Inc to Lead Buyer. Further, Lead Buyer may provide VMRD, Inc with a log-in to Lead Buyer’s publisher interface, where VMRD, Inc can review Lead Buyer’s calculation of the payments owing to VMRD, Inc for the transactions to be conducted hereunder. For the avoidance of doubt, (i) VMRD, Inc’s calculation of the fees payable to VMRD, Inc hereunder shall be binding on the parties (absent fraud or manifest error). Further, VMRD, Inc will invoice Lead Buyer on a weekly schedule for the leads billable in the preceding week. 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 VMRD, Inc within three (3) business days thereafter. Lead Buyer will make payment to VMRD, Inc for the undisputed portion of each account statement for the immediately preceding week before net/7 days, so that payment is received by
VMRD, Inc on or before 7 days after the invoice was sent by VMRD, Inc. All past due amounts shall accrue interest until paid at the lesser of 1.5% per month or the highest rate permitted by Pennsylvania law. VMRD, Inc reserves the right to discontinue lead delivery to Lead Buyer in the event that an invoice is past due. A weekly schedule will be used. VMRD, Inc will invoice Lead Buyer every week for Leads generated in the previous week (example: Leads sold from Monday through Sunday will be invoiced on the following Monday). Lead Buyer must render payment to VMRD, Inc within seven (7) days of receipt of such invoice. Any such invoice may be rendered by electronic mail or other electronic means; and, if so rendered, shall be deemed received upon dispatch.
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 Telemarketing Sales Rule, 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 VMRD, Inc’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 VMRD, Inc’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 VMRD, Inc has purchased any Lead from a third party ("Lead Seller") that imposes additional or different compliance requirements on VMRD, Inc, VMRD, Inc 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.
7.1. Certain Terms.
1. Confidential Information. “Confidential Information” means all of the trade secrets and other non-public business or financial information, business methods, procedures, know-how, contact data and other information of every kind that relates to the business of either Party that is disclosed by either Party to the other, in any form or medium, whether or not marked or identified as confidential at the time of disclosure, and includes, without limitation, financial information, strategies, plans for potential expansion and marketing initiatives and all other non-public information of a Party.
2. Lead Information. “Lead Information” means all information, including, without limitation, all Nonpublic Personal Information (as defined in subsection 7.1(c) herein), provided by or about a Lead through or by a Consumer seeking information about Personal/Installment loan products or services.
3. Non-public Personal Information. “Nonpublic Personal Information” has the meaning set forth in the Gramm-Leach-Bliley Act of 1999, 15 U.S.C. Section 6801 et seq., as amended, and applicable federal and state laws and regulations implementing the said act (collectively, “Privacy Laws”). Nonpublic Personal Information includes any information: (i) a consumer provides to a Party or its affiliates to obtain a financial product or service, (ii) about a consumer resulting from any such transaction, (iii) otherwise obtained about a consumer in connection with providing the financial product or service to that consumer, and (iv) any list, description, or other grouping of consumers (and publicly available Information pertaining to them) that is derived using any of the foregoing information.
4. Publicly Available Information. “Publicly Available Information” has the meaning set forth in the Privacy Laws and includes any information that a Party has a reasonable basis to believe is lawfully made available to the general public from: (i) federal, state, or local government records; (ii) widely distributed media; or (iii) disclosures to the general public that are required to be made by federal, state or local law.
5. Security Breach. “Security Breach” means any actual or potential unauthorized or accidental access, use, loss or disclosure of any Lead Information or a breach of
security or information systems that could reasonably be expected to expose any Lead Information to such unauthorized or accidental access or use.
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 VMRD, Inc to Lead Buyer to solicit or accept any business from other lead buyers or Lead Sellers who are working with VMRD, Inc or have worked with VMRD, Inc in the past.
7.4 Lead Information
1. Each Party will exercise all due care with respect to Lead Information and the collection, handling, delivery, processing and transmission thereof, including, and without limitation, to confidentiality, security, Privacy Laws, and any consent or authorization necessary to use such information as contemplated hereby.
2. Each Party will maintain appropriate physical, technical and organizational measures to protect all Lead Information against accidental loss or unauthorized access, use, disclosure, alteration, or destruction. Each Party acknowledges that the level of security that is appropriate will depend on the sensitivity of the information, the risks represented by the processing of the Lead Information, the
harm that is likely to result from a breach of security, industry standards and applicable law.
3. Each Party will notify the other immediately in writing of any Security Breach. Each Party will provide all necessary and reasonable cooperation to the other to comply with any laws applicable to such Security Breach, including, without limitation, the notification of all Leads who may have a right to be informed of the Security Breach and the investigation and prosecution of such Security Breach.
4. Either Party may disclose Lead Information as required by any applicable law, regulation, rule, court or administrative order or similar legal requirements. In the event of any such required disclosure, the disclosing Party will, to the extent permissible under applicable law, notify the other in advance of such disclosure and cooperate in any effort to minimize the extent of such disclosure and maintain the confidentiality of such 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 VMRD, Inc's compliance with the CANSPAM Act of 2003 and all applicable intellectual property laws with respect to VMRD, Inc's lead generation activities, and including without limitation Lead Buyer's compliance with any additional or different compliance requirements of Lead Seller. Further, VMRD, Inc
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 VMRD, Inc 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, 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.
1. VMRD, Inc does not permit, condone, or otherwise authorize any Lead Buyer, or its Affiliates or Indirect Affiliates (any entity working with, or for the benefit of Lead Buyer in any way), or other third party to send text messages to purchased Leads for campaigns unrelated to the consumer requested Personal/Installment loan service. Neither Lead Buyer nor any person who acquires lead information from Lead Buyer shall engage in any such marketing by text messaging.
2. VMRD, Inc reserves the right to monitor all Lead Buyer activities to ensure compliance with this No Text Message Marketing Covenant. VMRD, Inc reserves the right to terminate immediately and without notice any agreement, arrangement, or relationship with any third party that violates this No Text Message Marketing Covenant. Moreover, if required or requested by any law enforcement or other governmental authority or by any private party, VMRD, Inc reserves the right to identify any Lead Buyer, its Affiliate, Indirect Affiliate, or other third party known or suspected by VMRD, Inc to be violating this No Text Message Marketing Covenant in order to protect VMRD, Inc’s property or business or for any other reason, in VMRD, Inc’s sole discretion.
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 Lead Seller's terms) by such Party. In addition, Lead Buyer shall indemnify Lead Seller against Claims, including without limitation Claims arising from Lead Buyer's asserted breach of additional or different compliance requirements of Lead Seller. 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.
1. No Assignment; Headings; Amendment. Neither this Agreement nor the rights and obligations related here to may be assigned or in any way transferred by Lead Buyer, by operation of law, change of control or otherwise, to any Person without the prior written consent of VMRD, Inc in each instance. Subject to the foregoing, this Agreement is binding on and shall inure to the benefit of the Parties and their respective successors and assigns. The descriptive headings in this Agreement are for convenience only and do not constitute a part of this Agreement. Any amendment to this Agreement shall be effective only if made in writing and adopted on behalf of the parties by a duly authorized officer.
2. Entire Agreement; No Waiver; Severability. This Agreement and any exhibits hereto represent the entire understanding and agreement of Lead Buyer and VMRD, Inc with respect to the subject matter hereof and thereof. The failure of either Party in any one or more instances to insist upon strict performance of any term herein shall not operate as a waiver of any right hereunder. If any part of this Agreement, or the application thereof under certain circumstances, is held invalid, the remainder of this Agreement, or the application of such part under other circumstances, shall not be affected thereby.
3. Notices. All notices, consents, waivers and other communications required or permitted by the Agreement shall be in writing and shall be deemed given to a Party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by facsimile or e-mail, with confirmation of transmission by the transmitting equipment, and, if VMRD, Inc is the intended recipient, subsequent delivery of a copy of any such notice or other communication to VMRD, Inc by certified mail, return receipt requested, at 3000 Valley Forge Circle, Suite 3800, King of Prussia, PA 19406 or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each such case to the address for such Party set forth herein, as such address may be updated from time to time upon written notice to the other Party in accordance with this paragraph.
4. No Third-Party Beneficiaries. Nothing in the Agreement is intended or shall be construed to give any person other than the Parties hereto, their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision contained herein.
5. No Publicity. Neither Party shall advertise, market or otherwise disclose to any third party any information related to the making or existence of the Agreement.
6. Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of Pennsylvania, without regard to its conflict of
risdiction of the federal and state courts of Montgomery County, Pennsylvania, with respect to any dispute arising under the Agreement. Trial by jury in any action, proceeding or counterclaim arising hereunder or with respect hereto is hereby waived.
7. Execution. This Agreement may be executed in counterparts. A facsimile or electronic copy of this Agreement or any signature hereon (including any adoption of this Agreement by Lead Buyer evidenced by clicking an “I Agree” or substantially similar button on a web site maintained by VMRD, Inc) shall constitute an original and shall be valid for all purposes, each party hereby waiving the duty, if any, to maintain and/or produce a manually executed copy of this Agreement.
8. Safe Harbor. 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.
9. Safeguards Rule. 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