BankBeach

BankBeach^TM Terms and Conditions

Leads

These Terms and Conditions (the "Terms") together with the terms of the applicable insertion order (the "IO") entered into on the effective date as indicated by the IO, constitute a legally binding and enforceable purchase agreement (collectively, the Terms and the IO shall be referred to as the "Agreement") by and between the Buyer, its subsidiaries & affiliates and the Company.

WHEREAS, the Parties wish to provide the general terms and conditions under which the Company will provide Leads (as defined below) to the Buyer and the Buyer will purchase such Leads.

NOW THEREFORE in consideration of the foregoing and the mutual agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

>General Structure
The Buyer desires to acquire Leads (as defined below) from the Company for purposes of expanding the Buyer's network and in order to market the Buyer's goods, services, financial products or financing assistance. The Company will introduce Leads to the Buyer for the purpose of the Leads resulting in the purchase of goods, services or financing from or through the Buyer.
Definitions
In this Agreement the following capitalized terms shall have the meanings ascribed below:
1. "Affiliate" has the meaning ascribed to such term in the Delaware General Corporation Law;
2. "Agreement" has the meaning indicated on the cover page of these Terms;
3. "Applicant" means any applicant that: (i) completes the borrower flow on the online platform operated by the Company or one of the Company's subsidiary, partner, or affiliate sites and submits that information set to the Company; and (ii) which the Company subsequently sends to Buyer, or as otherwise instructed by Buyer;
4. "Business" means the sale of Leads including, but not limited to the sale of financial or non-financial related Leads to buyers;
5. “Buyer” means the buyer of the Leads;
6. "Client" means any third party who the Company has agreed to acquire Leads on behalf of;
7. "Company" means Beach Life Network Inc.;
8. "Company Verticals" means the financial or non-financial services provided, brokered or arranged by the Company to Applicants within various categories in connection with its Business, including but not limited to: consumer loans, , installment loans, debt consolidation loans, , loans to acquire or finance a vehicle or mortgages, insurance services and as may be expanded from based on the Company's Business;
  1. "Confidential Information" means information that is, or would reasonably be expected to be, treated as confidential and proprietary by the Company or the Buyer, as applicable, including, without limitation:
  2. an Applicant’s or other individual’s personal information, information pertaining to third parties, affiliates, partnerships and individuals involved, directly or indirectly, in the Parties’ business and the pricing under this Agreement; or
  3. the existence of any relationship between the Parties or the terms or existence of this Agreement;
9. in each case whether spoken, written, printed, electronic or in any other form or medium and regardless of whether delivered or accessed by the Buyer prior to, or following, the Effective Date or the date of this Agreement;
10. "Disclosing Party" has the meaning ascribed thereto in Section 17(a);
11. "Due Date" has the meaning ascribed thereto in Section 7(c);
12. "Effective Date" is the date of signing as indicated by the IO;
13. "Excess Leads" has the meaning ascribed thereto in Section 4(c);
14. "Invoice" has the meaning ascribed thereto in Section 7(a);
15. "IO" has the meaning ascribed thereto in the recitals;
16. "Lead" means any Applicant, that completes the borrower flow or other questionnaire on the online platform operated by the Company or one of the Company's subsidiaries, partner, or affiliate sites and submits that information set to the Company and which the Company has subsequently sent to the Buyer, in the name or names instructed by the Buyer;
17. “Lead Information" has the meaning ascribed thereto in Section 12;
18. "Lead Number Order" has the meaning ascribed thereto in Section 4(a);
19. "Lead Order" has the meaning ascribed thereto in Section 4(a);
20. "Party" means the Company or the Buyer, with "Parties" meaning the Company and the Buyer;
21. "Privacy and Data Protection Requirements" means all applicable local, provincial, foreign and international laws and regulations relating to the collection, retention, use, processing, disclosure, or protection of personal information, and all cyber incident, information security and data breach notification and record-keeping requirements including, where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction;
22. "Prohibited Publishers" has the meaning ascribed thereto in Section 19(a);
23. "Recipient" has the meaning ascribed thereto in Section 17(a);
24. "Term" means the term of this Agreement in accordance with Section 14;
25. "Terms" means these terms and conditions;
26. "Third Party Publisher" has the meaning ascribed thereto in Section 19(a); and
27. "Triggering Event" means the Buyer failing to pay any amount owing to the Company under or in connection with the Agreement within 60 calendar days of such amount becoming due.
Purchase and Sale of Leads
1. During the Agreement's Term, the Company agrees to sell Leads to the Buyer, and the Buyer agrees to buy Leads from the Company.
2. The Buyer shall ensure that all duties, responsibilities and communication by the Buyer and its employees and representatives in connection with this Agreement are performed in good-faith and in a professional and business-like manner. The Buyer acknowledges and agrees that threats and abusive behaviour, as determined by the Company in its sole discretion, will not be tolerated and will constitute a material breach of this Agreement, subject to immediate termination in accordance with Section 15(c).
Lead Order
1. At some point before the first day of each month, the Buyer shall provide verbal notice or notice in writing, including but not limited via telephone, email, text message, WhatsApp, Slack or Skype, to the Company with respect to the number of Leads the Buyer desires to be sent from the Company (such notice being a "Lead Order"). Each Lead Order shall provide the category of Leads and the number of Leads that the Buyer desires to receive, if any (a "Lead Number Order"), including the geographic region(s) in which the Applicant(s) reside for which the Buyer desires to obtain Leads. If the Buyer does not provide a Lead Order each month, the Company shall continue to provide, and Buyer shall continue to pay for, Leads, in the quantity and categories set forth in the Buyer's most recent Lead Order. Where the Buyer seeks to increase the Lead Number Order during the current month, the Buyer may do so by providing an additional Lead Order to the Company.
2. The Buyer acknowledges and agrees that the number of Leads reflected in a Lead Order represents only the maximum number of Leads for which the Buyer is willing to pay. Buyer further acknowledges, that the Company may be unable to accommodate such number of Leads and that the Company shall be obligated only to use its reasonable commercial efforts to provide such number of Leads. Any failure of the Company to provide the number of Leads specified in a Lead Order shall not constitute a breach of this Agreement. Any payments previously made by the Buyer for the number of Leads reflected in a Lead Order, but not delivered by the Company, shall constitute a pre-payment for such Leads which are to be delivered by the Company in the future.
3. Except as provided in the IO, in the event that the Company has, due to inadvertence or for any other reason, provided the Buyer with a number of Leads which is in excess of the Lead Order, or with Leads relating to consumers who reside outside of the geographic region in which the Buyer has requested Leads (collectively "Excess Leads"), the Buyer shall have five (5) calendar days from the date of receipt of such Excess Leads to notify the Company of such Excess Leads, object to such Excess Leads and to return such Excess Leads to the Company. In the event that the Buyer fails to notify the Company and fails to object to such Excess Leads within such five (5) calendar day period the Buyer shall be deemed to have requested and accepted such Leads and shall be obligated to promptly pay the Company for each such Excess Leads at the same price agreed for Leads hereunder.
Non-Exclusivity
This Agreement is non-exclusive and does not in any way limit either Parties' ability or rights to contract with any other persons for the provision, sale or receipt of Leads or services similar or identical to the services described in this Agreement, subject to the limitations outlined in Section 12 of this Agreement.
Compensation
For each Lead sent from the Company to the Buyer, the Buyer shall compensate the Company at the rate indicated in the IO, as may be amended from time to time.
Payment Terms
1. Unless otherwise specified in the IO or the Lead Order, the Company shall email monthly invoices to the Buyer for services rendered pursuant to this Agreement that are due and payable for the month (each, an "Invoice"). Each Invoice will be issued to, and payable by, the Buyer, unless the Buyer has assigned this Agreement to another person in accordance with Section 31. For greater certainty, the Buyer shall not require the Company to issue an Invoice to any other person.
2. The Buyer acknowledges and agrees that Invoices will reflect, for the applicable period, the number and total cost of: (i) Leads provided in accordance with the applicable IO or Lead Order; (ii) unreturned Excess Leads pursuant to Section 4(c); and (iii) fees pursuant to Section 7(d), and such Invoices shall be definitive. Invoices will be compiled, calculated and derived solely from the data, records and systems of the Company.
3. The Buyer agrees to pay the Company the amount reflected in each Invoice via electronic funds transfer, wire, direct deposit or by credit card by the due date specified in the IO, or if no due date is specified in the IO, within seven (7) days of receipt of such Invoice (the "Due Date"), in accordance with the Company account information provided in the Invoice or as provided by the Company. Payment is not contingent upon the Buyer being paid by a third party in connection with the Leads and in no event will the Due Date be extended. The failure for the Company to issue an Invoice to the Buyer within the period of time set out in this Agreement or an IO will not be deemed a breach of this Agreement and will not relieve the Buyer from paying the amounts due and owing to the Company for the Calls provided hereunder. If any payment is not received by the Due Date, the amount owing will be subject to a monthly compounding interest accruing at 2% per month (compounded) until paid in full.
4. The Buyer agrees to pay the Company for fees incurred by the Company in connection with payments made by the Buyer pursuant to this Section 7. Any fees incurred by the Company will be charged back to the Buyer on the applicable Invoice.
5. The Buyer acknowledges and agrees that the amount and total cost of the submitted Lead Order shall be definitive, shall not be subject to set off or dispute by the Buyer. The Buyer shall be obligated to pay for all Leads delivered by the Company pursuant to a Lead Order and the Buyer acknowledges that they shall not attempt to "charge-back" or cancel any such orders.
6. For greater certainty, the buyer acknowledges that all payments made by the Buyer to the Company pursuant to this Agreement are non-refundable and the Company is not responsible for making, and shall not make, any "charge-back" payments, regardless of the method of payment, that is made by the Buyer to the Company for Leads delivered pursuant to a Lead Order which are disputed, or otherwise claimed to be invalid due to any circumstances. Any such "charge-back" deductions or payments shall be the responsibility of the Buyer.
Security
1. Effective immediately and automatically upon, but not prior to, the occurrence of a Triggering Event, the Buyer hereby pledges, hypothecates, assigns, charges, conveys, sets over and transfers unto the Company and does hereby grant to the Company a continuing security interest in and to all of the present and future undertaking, assets and property of the Buyer including, without limitation, all present and after-acquired personal property of the Buyer (the "Collateral") for the benefit of the Company as general and continuing collateral security for the prompt and complete payment and performance when due of all amounts (absolute or contingent, matured or otherwise) now or subsequently owing by the Buyer to the Company pursuant to, or in connection with, this Agreement.
2. Upon the occurrence of a Triggering Event, the Company is authorized to make such registrations, filings or recordings or such re-registrations, re-filings or re-recordings against the Buyer as it may deem necessary or appropriate to perfect, maintain or protect the security interest created in the Collateral under this Agreement.
3. The Buyer hereby: (i) acknowledges receipt of a fully executed copy of this Agreement; and (ii) waives the right to receive from the Company a copy of any financing statement, financing change statement or other statement or document filed or registered at any time in respect of this Agreement or any verification statement or other statement or document issued by any registry that confirms or evidences registration of or relates to this Agreement.
4. Buyer agrees that in the event of breach of any of the terms of this Agreement by the Buyer, the Company will have the right to pursue the Buyer and any signatory of this Agreement in both their personal and corporate capacity, as applicable. For greater certainty, in the case where the individual signatory hereto is signing on behalf of a majority owned entity, the signatory additionally agrees that in the event of a breach, the Company will have the right to pursue such signatory, jointly or severally with the Buyer, in their individual or personal capacity directly for recovery or damages caused by any breach of the enclosed terms, non-payment of Invoices or any fraud, gross negligence or willful misconduct on the part of the Buyer or the individual.
5. This Section 8 shall survive the termination of this Agreement and the Buyer and the Collateral shall not be discharged from the security interest or from this Section 8 except by a release or discharge in writing signed by the Company.
Information Captured by the Company
1. Applicant information that will be provided in a Lead to the Buyer will differ depending on the category of Lead being purchased by the Buyer and the Company Vertical that the Lead is being used for. The Buyer acknowledges that not all Leads will contain a full data set and the information provided in respect of any particular Applicant is not assured for a number of reasons (for example, if the Applicant originated through a mobile application with the Company, such application may contain a shorter data set and Buyer will be provided with more limited Applicant information).
2. The Company may provide the Buyer a form of due diligence questionnaire, which the Buyer shall complete and deliver to the Company within sixty (60) calendar days following the Effective Date.
Use of Leads by the Buyer
1. The Buyer shall ensure its use of Leads and its term and conditions are in compliance with applicable privacy laws including the requirements of the Telephone Consumer Protection Act (or any similar applicable legislation). The Company shall be entitled to review the Buyer's terms and conditions and privacy policies to ensure the Buyer's terms and conditions and privacy policies meet this requirement and all Privacy and Data Protection Requirements. The Buyer shall take all steps reasonably necessary to aid with the Company's review of the Buyer's terms and conditions and shall make all such changes or amendments as are reasonably requested to such terms, conditions, and privacy policies as the Company may request.
2. Additionally, the Buyer shall ensure that it complies with all applicable anti-spam legislation, which may include, without limitation, Canada's Anti-Spam Legislation and [add other US equivalent legislation names as applicable] when contacting Applicants as a result of Leads provided in connection with this Agreement. Where an Applicant has "Opted-Out" of receiving communications from the Buyer, the Buyer shall provide this Applicant's name and contact information to the Company to ensure that this Applicant can be added to the appropriate do not call list, suppression list or unsubscribe lists, as applicable.
3. Where an Applicant contacts the Company with respect to "Opting-Out" of communications sent by the Buyer, the Company will provide the Buyer with this Applicant's name and contact information and the Buyer will cease communications with this Applicant in connection with this Agreement.
4. If the Buyer continues to contact an Applicant who has "Opted-Out" of receiving further communications, in connection with this Agreement, this may result in the immediate termination of this Agreement, without prior notice at the election of the Company.
5. The Buyer agrees to comply with all applicable Provincial, State and Federal privacy and communications regulations regarding do not call lists, suppressions lists and unsubscribe lists. The Buyer shall not, and shall not attempt to, resell any Leads provided by the Company to any third party or related party without the prior written consent of the Company which consent may be withheld by the Company at its full discretion. The Buyer explicitly agrees to indemnify the Company for any such failure by the Buyer under this Section 10, in accordance with Section 18 of this agreement.
Buyer Access to Leads
The Company agrees to provide the Buyer with direct access to Leads for the purpose of verifying information and obtaining necessary documentation to underwrite, fund, process or qualify the Applicant's purchase of goods or services or borrowing of funds from the Buyer or any other such financial and non-financial goods, products and services the Buyer may offer.
Ownership of Data
1. Subject to the terms and conditions of this Agreement, the Company hereby grants to the Buyer a limited, non-exclusive, revocable, license to use any personal information of each Applicant provided to the Buyer in a Lead under this Agreement ("Lead Information") for the sole purpose of: (i) attempting to fund each such Lead's requested loan; (ii) finance, lease or sell goods or services to said Lead; and/or (iii) providing any other such financial or non-financial goods, products and services the Buyer may offer and any other use as may be approved by the Company in writing from time to time.
2. In addition to its other obligations hereunder, the Buyer shall:
  1. use such the Lead Information only for those purposes authorized above in this Section 12;
  2. promptly advise the Company of any request by a Lead to access, correct or otherwise challenge the accuracy of said Lead’s Lead Information, or any other communication received by the Buyer in respect of such Lead Information (including, without limitation, any withdrawal or variation of consent by a Lead) and to work, in a timely manner, with the Company to respond to such requests (which response shall first be approved by the Company), including without limitation, by providing access to, correcting and ceasing to use or disclose such Lead Information as requested by such Lead;
  3. use all reasonable efforts to protect and safeguard such Lead Information, including, without limitation, to protect such Lead Information from loss or theft, or unauthorized access disclosure, copying, use, modification, disposal or destruction;
  4. only use, disclose, process, store or enable access to such Lead Information in Canada, USA or the United Kingdom or such other jurisdictions as the Company may approve in writing from time to time; and
  5. return, delete or render irretrievable any such Lead Information in its custody or control at the request and direction of the Company at any time and, in any event, at the expiry or termination of this Agreement.
3. The Buyer acknowledges and agrees that:
  1. the Company retains the exclusive ownership of all Lead Information and all intellectual property rights therein;
  2. such Lead Information is the confidential information of the Company;
  3. the Buyer may not sell, license, provide or otherwise disclose any Lead Information to any third party (including any affiliate or related party of the Buyer), without the prior written consent of the Company;
  4. the Buyer shall comply with all applicable law, and the Company's reasonable instructions, with respect to any Lead Information disclosed to the Buyer in connection with this Agreement;
  5. for clarity, and without limiting the foregoing, the Buyer shall comply will all applicable local, state and federal banking, marketing, licensing, lending, servicing and collection laws, rules and regulations at all times; and
  6. in the event of any unauthorized, unlawful, and/or unintended processing, access, use, disclosure, exposure, copying alteration, loss, disposal or destruction of Lead Information, the Buyer shall promptly notify the Company and cooperate with the Company's reasonable requests to investigate and remediate such incident and provide appropriate response and redress.
4. The Buyer acknowledges and agrees that: (i) the Company has the right to market additional goods or services to a Lead, and to contact Leads with respect to ongoing remarketing campaigns; (ii) without seeking the consent of the Buyer, the Company has the right to sell Leads previously provided to the Buyer in connection with this Agreement to Clients; (iii) each Lead is free to contact other vendors or service providers; and (iv) the Company will not be responsible if an Applicant contacts or enters into an arrangement with another vendor or service provider.
5. If the Buyer rejects a Lead for any reason within seventy-two (72) hours of the date of the delivery of the Lead to the Buyer:
  1. the license granted by the Company to Buyer in respect of said Applicant's Lead Information shall automatically be terminated; and
  2. the Company retains the right to aid such Applicant in obtaining any goods, services, financial or non-financial products or financing assistance offered by Buyer from other sources and may remarket and resell any such Lead towards any other prospective provider of goods, services, financial or non-financial products or for financing assistance.
Independent Parties
The Buyer acknowledges and confirms that the Company is an independent entity and not an agent, partner or employee of the Buyer. No joint venture, employment, agency, partnership or exclusive relationship exists between the Parties as a result of this Agreement or use of the Lead Information. Buyer shall not commit any act which would reflect unfavorably upon the Company, or make false or misleading representations or guarantees concerning the Company.
Term
The Buyer agrees to the term of this Agreement as described in the IO.
Termination
1. This Agreement can be terminated at any time, by providing fifteen (15) business days written notice (including via email) from either Party, provided that no such termination shall: i) effect the terms of Sections 6 or 7, which provisions shall survive any such termination: or ii) relieve Buyer from paying any outstanding balances hereunder.
2. In the event of termination, the Buyer agrees to complete that given months Lead Order, and must pay any outstanding balances owed to the Company for Leads obtained prior to the date of termination. Either Party may terminate this Agreement immediately if the other party breaches a term of this Agreement and that breach has not been cured within sixty (60) days of such breach, by notifying the other party of such termination in writing.
3. In the event of any material breach of the terms of this Agreement by either Party the other Party shall be entitled to terminate this Agreement immediately and, subject to the terms of this Agreement, shall be entitled to any other remedies available to it hereunder or under applicable law.
4. In the event of any termination of this Agreement, Sections 15, 16, 17, 18, 19 and 21 shall survive such termination and shall continue in full force and effect, for a period of 24 months following such termination date.
Buyer Representations and Warranties
Buyer represents, warrants and confirms that:
1. it is duly registered and/or has all required licenses or permits required to conduct its business and perform all duties under this Agreement in compliance with all laws, regulations and rules applicable to it and will perform such duties in accordance with the standards described herein.
2. it is a valid and subsisting corporation under the laws of the jurisdiction of its incorporation with full power and authority to enter into this Agreement and to carry out its obligations hereunder.
3. this Agreement constitutes a legal, valid, binding and enforceable obligation of Buyer subject to: (i) bankruptcy, insolvency, re-organization, arrangement, winding-up, moratorium or other similar laws of general application relating to or affecting the enforcement of creditors' rights generally; and (ii) general principles of equity, including the fact that equitable remedies, such as specific performance and injunctions, may only be awarded at the discretion of the court.
4. during the past five (5) years neither Buyer nor any of its directors, officers, agents or employees have been subject to any criminal convictions (other than summary offenses).
5. the execution and delivery of this Agreement, the performance of its obligations hereunder and the completion of the transactions contemplated herein will not result in violation of any law, regulation or rule by Buyer and Buyer has read this Agreement and understands the contents hereof and has not relied upon any advice from the Company.
6. the execution and delivery of this Agreement, the performance of its obligations hereunder and the completion of the transactions contemplated herein will not result in violation of any agreement or memorandum of understanding of the Buyer.
7. it will not make any representations or warranties, or provide any information about the Company or its products, services or affairs, as applicable, to any person or entity other than what is explicitly conveyed and agreed to by the Company.
8. there are no suits, actions or proceedings against or affecting Buyer, or any of its directors, officers, agents or employees, before any court, governmental body (including any regulatory authority) or arbitrator (nor to Buyer's knowledge, any such actions pending or threatened in writing) which are likely to materially adversely affect Buyer's ability to perform its obligations hereunder and Buyer is not in default with respect to any order of any court, governmental body (including any regulatory authority) or arbitrator which materially adversely affects Buyer's ability to perform its obligations hereunder.
9. Buyer shall accept all Leads delivered by the Company on an "as is, where is" basis and shall not be entitled to dispute the quality or convertibility of such Leads or to claim any set off or refund from the Company on the basis of such quality or convertibility.
10. it has complied with, and will continue to comply with, all applicable laws in connection with its use of the Leads acquired pursuant to this Agreement.
11. it shall comply with the terms of all intellectual property and software licensing arrangements between the Company and the parties with whom the Company has licensed such intellectual property or software and the Buyer acknowledges that other than as expressly set out herein, the Buyer shall have no rights or license to any intellectual property or software of the Company or of the parties whom the Company has licensed intellectual property or software from.
12. it shall at all times communicate with the Company and its officers, employees and consultants in a professional and civil manner and shall refrain from harassment, discrimination and the use of hostile, obscene or abusive behavior and language when dealing or communicating with the Company's officers, employees and consultants.
13. Information furnished by the Buyer to the Company pursuant to the due diligence questionnaire form that may be requested by the Company under Section 9 of this Agreement shall be true and correct in all material respects.
14. In connection with the performance of this Agreement, the Buyer will not conduct business in any province, state or other jurisdiction where it is required to be registered to do business in order to perform such services unless the Buyer is properly registered to do business in such province, state or other jurisdiction including registration under any trade name or other business name used by it to do business. The Buyer acknowledges and agrees that a breach of this Section 16(n) is a material breach of this Agreement.
15. The Buyer has sufficient financial capability to satisfy the payments and perform its obligations hereunder, has substantive business activities, and owns all assets and properties necessary to carry out such activities.
Confidential Information, Non-Solicitation and Non-Disparagement
1. Each Party acknowledges that it may directly or indirectly disclose Confidential Information to the other Party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing Party ("Disclosing Party") or other third party, as applicable, and the recipient of such information (the "Recipient") shall have no interest in, or rights with respect thereto, except as set forth herein. Each Party agrees to treat such Confidential Information as strictly confidential and with the same degree of care and security as it treats its most confidential information, but in all cases not less than a reasonable degree of care.
2. The Recipient shall not, without the prior written authorization of the other Party, either during the term of this Agreement or at any time after the termination of this Agreement:
  1. use any Confidential Information for the benefit or purposes of the Recipient or any other person, company or organization whatsoever other than as otherwise permitted or expressly contemplated by this Agreement; or
  2. disclose any Confidential Information to any person, company or other organization whatsoever, other than to the Recipient's personnel who have a need to know such Confidential Information, and provided that Recipient shall require each of such personnel to execute written agreements, in a form satisfactory to the other Party, securing for the other Party, the rights provided for in this Section 17 prior to and as a condition of such personnel providing or performing any services for the Recipient in relation to the Leads, and shall provide a copy of such agreement to the other Party upon request of the Disclosing Party and both the Recipient and its employees, agents and personnel will be fully liable and responsible for any breach of such written agreement by such persons.
3. During the term of this Agreement and for a period of twenty-four (24) months following the expiration or termination of this Agreement for any reason, Buyer shall not, directly or indirectly, in any manner whatsoever including, either individually or through an affiliate or subsidiary, or in partnership, jointly or in concert with any other person do the following:
  1. solicit or entice, or attempt to solicit or entice, either directly or indirectly, any customer of the Company or any of the Company's affiliates, to become a customer of any business or enterprise that competes with the Company for any Business, or entice , direct or encourage any customer of the Company to cease or limit doing any Business with the Company or any of the Company's affiliates; or
  2. solicit or entice, or attempt to solicit or entice, either directly or indirectly, any employee or independent contractor of the Company or any of the Company's affiliates, to become employed or retained by any business or enterprise that competes with the Company for any Business, or entice, direct or encourage any employee or independent contractor of the Company to cease or limit their employment or retainer with the Company or any of the Company's affiliates.
4. Unless otherwise required by applicable law, Buyer shall not, on their own behalf, or on behalf of or in connection with any other person, in any capacity whatsoever, make or publish written or oral statements or remarks (including the repetition or distribution of derogatory rumours, allegations, negative reports or comments) which are intended to or could be reasonably expected to have the effect of disparaging, impugning or damaging the integrity, reputation or goodwill of the Company or its respective affiliates or any of its directors, managers, officers, employees or equity holders. Buyer further covenants and agrees that Buyer shall, upon request, advise the Company of the identity of any third parties who they become aware have made or published any such written or oral statements or remarks which could reasonably be expected to have the effect of disparaging, impugning, or damaging the integrity, reputation or goodwill of the Company and the details of such statements or remarks.
Non-Competition
During the term of this Agreement and for a period of twenty-four (24) months following the expiration or termination of this Agreement for any reason, the Buyer shall not, directly or indirectly, in any manner whatsoever including, either individually or through an affiliate or subsidiary, or in partnership, jointly or in concert with any other person, carry on, be engaged in, assist, service, consult for, represent, advise, invest in or be otherwise commercially or financially involved in any business (or any part thereof) which is the same as, substantially similar to, or is in competition with, the Business or any part thereof.
Non-Circumvent
1. Buyer acknowledges that through the relationship contemplated, Buyer may learn that certain media buyers, publishers, marketing partners or other third party contractors (collectively “Third Party Publishers”) work with the Company. During the term of this Agreement and for two years following its termination, Buyer agrees not to utilize knowledge of any Third Party Publishers that was gained primarily through a relationship with the Company (the "Prohibited Publishers"), to directly or indirectly, solicit such Prohibited Publishers to enter into an agreement that would displace the Company’s relationship with such Prohibited Publishers or cause the Buyer to purchase Leads or calls from such Prohibited Publisher.
2. Buyer acknowledges that through the relationship contemplated, Buyer may learn that certain Clients work with the Company. During the term of this Agreement and for 24 months following its termination, Buyer agrees not to utilize knowledge of any Client that was gained through a relationship with the Company, to directly or indirectly, solicit any such Client to enter into an agreement that may reasonably be expected to displace or diminish the Company’s relationship with such Client or cause the Buyer to circumvent the Company and sell Leads or calls to the Client.
3. Any attempt to circumvent the terms or intent of this Agreement, either directly or indirectly, or unauthorized disclosure to any third-parties shall be considered a breach of this Agreement entitling the Company to exercise the remedies available to it hereunder. Such remedies shall be in addition to any injunctive or other equitable relief, or remedy at law, that may be sought by the Company to prevent or remedy further circumvention or other terms and conditions of this Agreement.
Brand Bidding Prohibition
The Buyer, acknowledges and agrees that it will not, and is prohibited from the following: (i) bidding on any search terms or phrases containing the Company's trademarks, the Company's branded terms, and misspellings or confusingly similar terms or those of the Company's subsidiaries or affiliates; (ii) bidding on any of the Company's or its subsidiaries' or affiliates' URLs or variations or misspellings (soft branded) thereof; (iii) using any of the Company's or its subsidiaries' or affiliates' trademarks without consent, or any of the Company's or its subsidiaries' or affiliates' branded terms, and misspellings or confusingly similar terms in the Buyer's paid search ad copy. The Buyer covenants that it will broad negative match the Company's or its subsidiaries' or affiliates' trademarks, the Company's or its subsidiaries' or affiliates' branded terms, and misspellings or confusingly similar terms in all paid search campaigns. A breach of this provision will be deemed as a material breach, and this Agreement will be subject to immediate termination pursuant to Section 15(c).
Indemnification and Limitation of the Company's Liability
1. Buyer shall indemnify and hold harmless the Company, its affiliates, employees, officers and directors from and against any and all claims, actions, suits, proceedings, judgments, damages, liabilities, costs and expenses, including reasonable attorneys' fees and any fees or costs incurred by the Company in the enforcement of this Agreement or arising directly or indirectly from breach of this Agreement, negligent acts or omissions, or willful misconduct of Buyer including its personnel and affiliates;
2. Notwithstanding anything else herein above, under no circumstances shall the Company bear any liability or obligation to indemnify or pay the Buyer for loss of profits or any other indirect or consequential damages.
3. Notwithstanding anything else herein above, under no circumstances shall the Company bear any liability or obligation to indemnify or pay the Buyer for any amounts exceeding twice the average monthly fee during the preceding year.
Insurance
1. The Buyer shall, at its own expense, maintain reasonable and appropriate insurance in respect of its business operations with reputable insurance companies authorized to do business in the jurisdiction in which the Buyer carries on business to support its release, defense, indemnity and other obligations hereunder. To the extent of the risks and liabilities expressly assumed under this Agreement, the Buyer shall upon the request of the Company cause its insurers: (i) to waive all rights of subrogation against the Company and its affiliates, and their respective underwriters and insurers; (ii) to name the Company and its affiliates as an additional insured; and (iii) to furnish to the Company, at such times as the Company may request, a certificate of insurance evidencing the insurance obtained. To the extent of the risks and liabilities expressly assumed under this Agreement, the Buyer's insurance provided under this Agreement shall be primary and non-contributory. All premiums, deductibles and self-insured amounts shall be at the sole cost and expense of the Buyer.
2. The Buyer acknowledges and agrees that the Company and its affiliates maintain accounts receivable insurance. As and when requested by the Company or the Company's insurer, the Buyer shall provide the Company's insurer with such reasonable financial and other information as may be required in order to assist the Company in establishing or maintaining such accounts receivable insurance or to establish an appropriate risk rating with respect to any accounts receivable owing to the Company or its affiliates by the Buyer.
Governing Law
This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Delaware, and the Federal Laws of the United States of America applicable therein, without regard to conflict of laws principles.
Force Majeure
1. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Events"): (i) acts of God; (ii) flood, fire, earthquake, tsunami, epidemics, pandemics including the 2019 novel coronavirus pandemic (COVID-19) or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (iv) government order or law; (v) actions, embargoes, or blockades in effect on or after the date of this Agreement; (vi) action by any governmental authority; (vii) national or regional emergency; (viii) strikes, labour stoppages or slowdowns, or other industrial disturbances; (ix) telecommunication breakdowns or power outages or shortages; and (x) other similar events beyond the reasonable control of the Impacted Party.
2. The Impacted Party shall give notice within three (3) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 24(b), the other Party may thereafter terminate this Agreement in accordance with Section 15.
Waiver
No waiver of any obligation or any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the Party purporting to give the same and, unless otherwise provided, will be limited to the specific obligation or breach waived. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
Disputes and Choice of Venue
Any legal proceeding arising out of or in connection with this Agreement, any ancillary agreements (to the extent no choice of law is specified therein) or any transactions contemplated by this Agreement and not otherwise addressed by Section 8 or Section 27 of this Agreement, may be brought in the Court of Court of Common Pleas situated in the City of Dover (the "Court") and each of the Parties irrevocably submits to the jurisdiction of that Court. The Parties agree not to contest such jurisdiction or seek to transfer any legal proceedings to any other jurisdiction on the grounds of inconvenient forum or otherwise.
Dispute Resolution
1. Subject to the rights granted by Section 8 of this Agreement, any controversy, dispute, disagreement, or claim arising out of, relating to or in connection with this Agreement or any breach thereof, including any question regarding its existence, validity, or termination, shall be finally and conclusively resolved by arbitration under the Delaware Rapid Arbitration Act. The following provisions shall govern any arbitration hereunder:
  1. The place or legal seat of arbitration shall be Dover, AB.
  2. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof. In the event the Parties cannot agree upon an arbitrator within twenty (20) days, either Party may apply to the Court to have an arbitrator appointed.
  3. The language of the arbitration shall be in in English.
2. The arbitrator appointed under this Section 27 shall be authorized to issue provisional or conservatory measures. However, each Party retains the right to apply to the Court for provisional and/or conservatory relief:
  1. prior to the appointment of an arbitrator; or
  2. in the absence of the jurisdiction of the arbitrator to rule on provisional or conservatory measures in Delaware. The Parties agree that seeking and obtaining such provisional or conservatory measures shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
3. In addition to the authority conferred upon the arbitral tribunal by the Delaware Rapid Arbitration Act, the arbitrator shall have the authority to order production of documents in accordance with the IBA Rules on the Taking of Evidence in International Arbitration.
4. The existence and content of the arbitral proceedings, including any ruling or award, the identity of witnesses, documents and information produced by one Party to another, and materials prepared for the purpose of the arbitration, shall be kept confidential by the Parties and the arbitrator and shall not be used for any purpose other than in connection with the arbitration. The Parties shall also take reasonable efforts to ensure that their officers, employees, witnesses, representatives, and consultants comply with the obligation of confidentiality herein. Notwithstanding all the foregoing, the Parties shall have the right to disclose the foregoing information: (i) to the extent that disclosure may be required of a Party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a court or other judicial authority, (ii) with the consent of all Parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this clause, (v) where such information is already in the possession of a Party prior to its disclosure by another Party, or (vi) by order of the arbitrator upon application of a Party.
5. The arbitrator may include in the award an allocation to any Party of such costs and expenses, including lawyers' fees, as the arbitrator shall deem reasonable. In making such allocation, the arbitrator shall consider the relative success of the Parties on their claims and counterclaims and defenses.
6. Any award of the arbitral tribunal shall be final, non-appealable, and binding on the Parties. The Parties expressly waive any right of appeal to any court or judicial authority to the fullest extent permitted by law, other than as may be necessary to enforce or confirm any arbitration award.
No Class Action
The Buyer shall not, and hereby agrees not to commence or participate in, and shall, and hereby agrees to, take all actions necessary to opt out of, any joinder or consolidation of claims or any class in any class action with respect to, any claim, derivative or otherwise, against the Company or any of its affiliates (or any of their respective successors) relating to the negotiation, execution and delivery of this Agreement, the purchase of Leads by or from the Company or any matters related thereto.
Severability
If any arbitrator or court of competent jurisdiction determines any provision of this Agreement or portion thereof to be illegal, invalid or unenforceable that provision or portion thereof will be severed from this Agreement without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
Notice
Any demand, notice or other communication to be given in connection with this Agreement must be given in writing and may be given by personal delivery, by courier or e-mail, addressed to the recipient as follows:
To the Company: 850 New Burton Road, Suite 201, County of Kent, Dover, Delaware 19904
To Buyer: As per the IO
or such other address, individual or electronic communication information as may be designated by notice given by any Party to the other Party. Any demand, notice or other communication given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof and, if given by courier, on the business day following the documented delivery thereof and, if given by e-mail, on the day of confirmation of receipt by the recipient.
Assignment
1. The Company may assign its rights or obligations hereunder at its full discretion without the prior written consent of the other Buyer.
2. Buyer shall not assign any right or any obligation under this Agreement without the prior written consent of the Company, and any such attempted assignment shall be null and void, provided, however, that an assignment made in connection with a change of control transaction or a sale of all or substantially all of the Buyer's assets shall not require the consent of the other Party. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
Entire Agreement
1. This Agreement, being these Terms together with the IO, comprise the entire agreement and understanding between the Parties concerning the provision of Leads and the services rendered by the Company under this Agreement and supersedes any prior understanding or agreements, whether oral or written, concerning the subject matter hereof.
2. This Agreement shall not be amended except by a written agreement that: (i) is signed by the authorized signing officers of each of the Parties; and (ii) expressly states that it is intended to amend this Agreement. No waiver of any obligation or any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the Party purporting to give the same and, unless otherwise provided, will be limited to the specific obligation or breach waived.
Interpretation
In this Agreement, except to the extent otherwise provided herein or the context otherwise requires: (i) the definition of terms herein shall apply equally to the singular and the plural; (ii) any pronoun shall include the corresponding masculine, feminine and neuter forms; (iii) the words "include," "includes" or "including" shall be deemed to be followed by the words "without limitation"; (iv) the words "herein," "hereof," "hereto," "hereunder" and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision of this Agreement; (v) the use of the word "or" is not intended to be exclusive unless expressly indicated otherwise; (vi) the words "will" and "shall" have equal force and effect; (vii) reference to any Section shall mean such Section of this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition; and (viii) reference to any Applicable Law shall mean such Applicable Law (including all rules and regulations promulgated thereunder) as amended, modified, codified or re-enacted, in whole or in part, and in effect at the time of determining compliance or applicability.
Execution of Agreement
This Agreement may be executed in any number of counterparts, and by portable document format or other electronic means, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument. Delivery of an executed signature page to this Agreement by any Party by electronic transmission will be as effective as delivery of a manually executed copy of this Agreement by such Party.
Time is of the Essence
Time shall be of the essence in this Agreement.
Authorized Signatories
All executed Call Orders will be deemed to have been executed by authorized Buyer Representatives and the execution and delivery of any such Call Order will constitute a legal, valid, binding and enforceable obligation of the Buyer.
Privity of Contract
Nothing in this Agreement shall create, or be deemed to create, any enforceable rights or benefits for, or against, any person that is not one of the named Parties to this contract. For greater certainty, the Company's subsidiaries, Affiliates and parent entities, as applicable, are not a party to this Agreement and no privity of contract exists between the Buyer and any of the Company's subsidiaries, Affiliates or parent entities.
Successor and Assigns
This Agreement shall enure to the benefit of and shall be binding on and enforceable by the Parties and their respective successors and permitted assigns.
Independent Legal Advice
THE BUYER ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, IT HAS HAD THE OPPORTUNITY TO OBTAIN INDEPENDENT LEGAL ADVICE, AND FURTHER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.
Acknowledgement and Agreement of Terms
In accordance with the IO, Buyer affirms that it has read and fully understands and accepts all applicable Terms as of the Effective Date as indicated by its signature below:

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