This Lead Purchase and Sale Agreement is entered into by and between The Wholesale Lead Network (“TWLN”), and the lead buyer identified in the Insertion Order (“Lead Buyer” or “TWLN Members”) (also individually referred to herein as a “Party” and collectively as the “Parties”). This Lead Purchase/Sale Agreement, together with the Insertion Order (“IO”), constitutes the “Agreement.” The Agreement shall be effective as of the earlier of the date of the last signature below, the Campaign Launch Date listed in the IO, or the date of the last signature on the IO (the “Effective Date”). The Agreement sets forth the Parties’ rights and obligations with respect to the Campaigns identified in the IO. If any term in this Lead Purchase and Sale Agreement conflicts with the terms and conditions set forth in the IO, the IO shall control.
A “Lead” consists of contact information meeting the specifications set forth in the IO and/or email communication between TWLN and Lead Buyers Authorized Agent that is submitted by a consumer. Leads may include a unique identifier representing the source of the Lead. TWLN screens all Leads using third party validation filters prior to delivery. Unless otherwise provided in this Agreement, all Leads remain subject to additional marketing by
TWLN and/or TWLN’s advertising clients.
An “Exclusive Lead” is a Lead generated by TWLN Lead Sellers for Lead Buyers exclusive use; provided, however, that TWLN shall at all times be entitled to market products and services to the Lead other than the product or service for which the Lead was initially generated, at TWLN discretion.
A “Lead Return” is a Lead that has been returned to TWLN within 15 days after the Lead delivery date and which is accompanied by a
valid reason for the return(s). Valid reasons for returns are as such but not limited to and at TWLN’s discretion; Invalid Contact Info, Customer requesting a refinance, Consumer states they never applied.
An “Email Amendment” is a modification to this Agreement through email communications between authorized agents of the respective Parties evidencing mutual assent to the modification(s); provided, however, that the subject of such modifications shall be limited to the following terms:
(a) Daily Cap, (b) Cost Per Lead, (c) Target Territories, (d) Campaign Launch Date, (e) Filter Changes. All criteria for a valid sale under this Agreement shall be specified in the IO.
“Cost Per Lead” means the price agreed by Lead Seller and paid by Lead
Buyer for Leads.
A “Lead Vertical” is a lead vertical such as Auto Finance, New Car, Insurance leads, etc.
A "Duplicate Lead" means a Lead that is generated within the same Lead Vertical by the same individual who is requesting the same or similar information within a 45 day period of the initial request.
TWLN will grant Lead Buyers a limited, non-exclusive license to use the TWLN’s Lead software system (“System”) for the sale/purchase of data or
information collected through TWLN and/or affiliates marketing strategies.
Lead Buyer’s Use Restrictions:
Lead Buyer is prohibited from using, retaining, selling, brokering, or marketing any Leads not purchased by Lead Buyer, Leads rejected by Lead Buyer, and leads returned as a Lead Return. Lead Buyer understands and agrees rejected Leads, Lead Returns, and any customer or system information included with any of the preceding are considered TWLN‘s Confidential Information under this Agreement.
Reporting, Post Procedures for Lead Buyers:
TWLN will provide Lead Buyer with a secure online login access to all leads and reporting.
TWLN Members will be charged a monthly membership fee of $299 per month. This fee will cover all cost for TWLN lead software and distribution
systems. This fee will be automatically charged on the 1st business day of each month unless a written cancelation notice has
been supplied to TWLN 48 hours prior to the first business day of each month.
TWLN leads are sold on a prepaid basis, price per lead will be specified on initial IO and/or via emails between authorized agents only. TWLN will provide reporting with account balances via secure membership portal. All approved returns will be applied as credits towards Lead Buyers account escrow.
Term and Termination:
The term of the Agreement will be one year from the effective date of this Agreement. The Agreement will automatically renew thereafter on a month-to-month basis. Either Party may terminate or suspend this Agreement, an IO, or a Campaign for any reason (or for no reason) by providing the other Party with written notice (including by email) within 72 hours. In all events, Lead Buyer shall remain liable for a) all Leads generated prior to the effective date of termination; andb) all remaining Leads that have not been purchased by Lead Buyer prior to the effective date of termination for all Insertion Orders in which the Parties have agreed to a sum certain of Leads (i.e. a fixed number of Leads). In the event of a material breach by Lead
Buyer or Lead Seller, TWLN may terminate this Agreement.
TWLN will own any and all right, title, and interest in and to: (a) TWLN reporting platform and affiliate interface; (b) TWLN’s data validation filters and lead-distribution technology, (c) TWLN’s lead exchange technology, and (d) all intellectual property rights (including without limitation copyrights and patent rights) in the foregoing. Lead Buyer and Lead Seller agree they have no rights in or licenses to any of the foregoing, except as expressly set forth
As used herein, “Confidential Information” shall mean: (a) either Party’s proprietary information; (b) information marked or designated by either Party as confidential; (c) information otherwise disclosed in a manner consistent with its confidential nature; (d) the terms and conditions this Agreement; and (e) information of either Party conveyed to the other Party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by either Party to be treated as confidential. Each Party acknowledges that, as a result of the provision of services pursuant to this Agreement, each Party may disclose Confidential Information to the other Party. Therefore, each Party agrees that it will make no disclosure of Confidential Information without obtaining the other Party’s prior written consent. Additionally, each Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s), or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed under this Agreement. This Section shall survive any termination of this Agreement for a period of three (3) years thereafter. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the recipient can demonstrate with clear evidence that the information: (a) was previously known to the recipient at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the recipient; (c) was rightfully received
by the recipient from a third Party who was not bound under any confidentiality provisions; (d) was independently developed by the recipient without reference to or use of the Confidential Information of the disclosing Party or (d) was disclosed pursuant to judicial order, requirement of a governmental agency, or by operation of law.
Representations and Warranties:
Each Party represents and warrants: (1) that they are at least 18 years old; (2) that they have the full power and authority to enter into this Agreement on behalf of themselves or their company, and that any of their employees, agents, representatives, or any person or entity acting on their behalf with respect to providing Leads to the System will be bound by this Agreement; (3) that the execution, delivery and performance of this Agreement will not violate any law, statute or other governmental regulation including, without limitation, the Can-Spam Act of 2003, the Do Not Call Implementation Act, The Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telephone Consumer Protection Act, and any other applicable laws and the rules promulgated thereunder; (4) that the acquisition, compilation, collection and/or prior use of the Leads did not and does not violate any law or laws, including without limitation the Can-Spam Act of 2003 or the Children’s Online Privacy and Protection Act; (5) that the Leads supplied via the System are owned or validly licensed; (6) that the Leads consist of records of persons who have expressly indicated permission to receive third party
commercial email advertising messages and/or who have expressly indicated permission to sell their information to third parties, without subsequently rescinding such permission by virtue of submitting an opt-out or removal request; (7) that the privacy policies under which the information in the Leads was collected expressly indicated at the time the information was collected thereunder that the individual’s information, including without
limitation his/her personally identifiable information and specifically the phone number, email address and/or direct mail address, would be sold, licensed, rented, leased and/or shared in some capacity with third parties for the purpose of third-party marketing and solicitation; (8) the Leads will not violate the proprietary or intellectual property rights of any third parties, and; (9) that the Parties complied with all relevant local, state,
and federal licensing requirements.
EXCEPT AS EXPRESSLY SET FORTH IN THE SECTION OF THIS AGREEMENT TITLED “REPRESENTATIONS AND WARRANTIES”, THE PARTIES PERFORM ALL SERVICES HEREUNDER ON AN “AS IS” BASIS AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. RWREACT EXPRESSLY DISCLAIMS ANY WARRANTY THAT IT WILL GENERATE ANY MINIMUM NUMBER OF LEADS OR MINIMUM PAYOUT UNDER THIS AGREEMENT.
Limitation of Liability:
OTHER THAN THE INDEMNIFICATION OBLIGATIONS OR ANY CLAIMS RELATED TO BREACH OF THE CONFIDENTIALITY OBLIGATIONS AND CINCUMVENTION SET FORTH HEREIN, NEITHER PARTY SHALL BE ENTITLED TO PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER. UNDER NO CIRCUMSTANCES WILL
TWLN’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF REVENUE PAID BY LEAD BUYER TO TWLN OR PAID BY TWLN TO LEAD SELLER PURSUANT TO THE APPLICABLE IO UNDER WHICH THE CLAIM AROSE.
ByTWLN. TWLN agrees to indemnify, defend and hold harmless Lead Buyer, its affiliates, and their respective employees, directors, officers and agents, from any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees)(collectively, “Losses”) due to, arising from, or in connection with any third party claim, suit, judgment or proceeding (a “Claim”) alleging (a) any breach by TWLN of this Agreement and; (b) any wrongful conduct committed by TWLN pursuant to or in performance of this Agreement.
By Lead Buyer.
Lead Buyer agrees to indemnify, defend and hold harmless TWLN, its affiliates, and their respective employees, directors, officers and agents, from any and all losses due to, arising from, or in connection with any Claim, alleging (a) any breach by Lead Buyer of this Agreement and; (b) any wrongful conduct committed by Lead Buyer pursuant to or in performance of this Agreement.
Each Party’s indemnity obligations are contingent on the Party seeking indemnity (the “indemnified party”) giving the Party from whom indemnity is sought (the “indemnifying party”) prompt written notice of any such Claim, permitting the indemnifying party sole and exclusive control of the defense and settlement of such Claim with counsel of the indemnifying party’s choosing (although the indemnified party will be entitled to participate at its own
expense in the defense of any such Claim), and reasonably cooperating with the indemnifying party in connection with such defense. The indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights or interests without the prior written consent of the indemnified party.
Choice of Law; Attorneys’ Fees:
This Agreement shall be governed by and construed in accordance with the laws of Florida, without reference to conflicts of law rules. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located in Hillsborough County, Florida.
Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations here under. Any prohibited assignment shall be null and void.
For purposes of contract interpretation, including resolution of any ambiguity, the Parties acknowledge this Agreement was prepared jointly and therefore the terms of the Agreement should not be strictly construed against either Party.
Agreement in Counterparts:
This Agreement may be signed in counterparts; facsimile signatures and electronic signatures shall have the same force and effect as an original signature.
All notices and other communications shall be sent by email to the email addresses for TWLN and Lead Buyer listed in the IO.