LEAD PROVIDER AGREEMENT – TERMS AND CONDITIONS
THIS LEAD PROVIDER AGREEMENT (“Agreement”) sets forth the terms and conditions integral to each Publisher Insertion Order entered into by and between Lender Direct Network, LLC , a Georgia limited liability company, as the party purchasing said services described in this Agreement, either on its own behalf or on behalf of others (hereinafter “LDN”), and the Lead Provider, as the party to provide specified services as described in this Agreement (hereinafter the “Lead Provider” or “Publisher” pursuant to the related Publisher Insertion Order), said parties sometimes jointly hereinafter referred to as the “Parties”.
LDN is a marketing agency skilled in placing financial services leads for sub-prime consumers with automobile title or equity lenders. Lead Provider desires to become an LDN “Lead Provider.” A Lead Provider is a provider of Cash Advance Leads and with whom LDN has entered into this Lead Provider Agreement. Lead Provider agrees that any leads to be provided hereunder shall be submitted in conjunction with a Publisher Insertion Order (“IO”) and such IO and the Agreement together shall reflect the terms, conditions and obligations of the Parties hereto.
NOW, THEREFORE, having agreed to the terms of the IO referenced and incorporated herein, the Parties hereby agree as follows:
1. OBLIGATIONS OF LDN
1.1 The Parties will communicate and process Leads using the “Push Method” (a data distribution technology in which data is automatically delivered electronically over an SSL link from Lead Provider’s website, using XML, to LDN). LDN will provide Lead Provider with:
- Detailed documentation regarding the methodology required to transmit Leads from Lead Provider in the form of a SOAPAPI or an LSS API document specifying Push Method requirements;
- An IP address, or URL where Leads will be received;
- A test environment to allow the testing of:
- the transmission of Leads
- receipt of Leads
- integrity of Leads; and
- the accounting for Leads.
1.2 LDN will provide Lead Provider with and maintain:
- Accurate descriptions for all Lead Provider products and services within the Network as detailed in the IO;
- A response of transmission of Leads that identifies the status of the receipt of Leads as either a ‘success’ , ‘reject’ or ‘error’.
- A customer service contact, technical contact and accounts payable contact within LDN’s organization, to interface withLead Provider’s technical staff for implementation and troubleshooting.
- A username and password to Lead Provider to access www.LenderDirectNetwork.com to verify general offer stats andlead counts; and
- Up-to-date filtering criteria for Leads provided in www.LenderDirectNetwork.com.
2. OBLIGATION OF LEAD PROVIDER
During the Term of this Agreement, Lead Provider will provide the following services:
2.1 Transmit Leads to LDN electronically over a SSL link from Lead Provider’s website, using XML en-coding;
2.2 Guarantee an eighty percent (80 %) redirect rate. “Redirect” shall be defined as the ability to properly redirect the customer (purchased lead) to the directed page or site. If such redirect rate is not achieved, LDN will send a warning email to Lead Provider’s contact. If no change is made during the next twenty four (24) hours, LDN may at its sole discretion turn off traffic until issues are resolved. Once Lead Provider claims to have issues remedied, LDN shall run leads at twenty five (25) leads per day until it is proven to the satisfaction of LDN that the issue has been resolved. If redirect rates fall below 50 %, LDN reserves the right to turn off the campaign without notice. If LDN detects redirect issues, LDN will make an effort to send a warning email to Lead Provider’s contact; however, failure to send a warning email does not limit LDN’s remedies herein.
2.3 Lead Provider is responsible for all creative materials and for maintaining suppressions lists in compliance with the CAN-SPAM Act of 2003 and as amended from time to time.
2.4 Lead Provider is responsible for meeting acceptable advertiser conversion metrics.
2.5 LDN reserves the right to change accepted traffic volume caps with no prior notice, however, typically twenty four (24) hours prior notice will be given.
3. ACCEPTED AND UNACCEPTABLE LEADS
3.1 Under this Agreement a Lead will be valid if an end user applicant meets the following minimum criteria:
- The applicant is a United States resident;
- The applicant is at least eighteen (18) years of age;
- The applicant provides all the information requested in the required fields of the cash advance form; and
- Any additional terms for specific offers as contained in the IO.
3.2 It is understood that Lead Provider shall deliver Leads with the above minimum criteria to LDN.
3.3 For purposes of this Agreement, the following shall be considered “Unacceptable Leads”:
- Any Duplicate Leads per campaign (for purposes of this Agreement “Duplicate Leads” will be defined as Leads containing identical information to a Lead previously delivered to LDN by Lead Provider within the previous twenty four (24) hours unless otherwise stated in the Insertion Order), fraudulent leads, or incentivized leads;
- A Lead that does not meet the criteria set out in Section 3.1 of this Agreement; or
- Any additional terms for specific offers as contained in the IO.
4. FRAUD CONTROL
4.1 LDN utilizes a fraud control system to monitor for suspicious activity and potential fraud. Any company or individual that tries to artificially inflate Actions, traffic counts, revenue, or use any device, robot/program or other means to do so may be reported to the appropriate law enforcement and regulatory authorities for fraud and theft, and LDN reserves the right to pursue all available remedies. LDN flags accounts that:
- Have click-through rates that are much higher than industry averages without solid justification;
- Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
- Have produced fraudulent Leads as determined by LDN’s clients; or
- Use fake redirects, automated software, and/or fraud to generate clicks or Leads from LDN’s programs.
4.2 If LDN suspects Lead Provider of fraud, Lead Provider acknowledges that it is its responsibility to prove that no fraudulent activity has occurred to the satisfaction of LDN. LDN’s determination whether Lead Provider has engaged in fraudulent conduct is final. If LDN detects fraud, Lead Provider’s account will be made inactive pending further investigation and all commission checks will be held until such time as LDN determines that no fraudulent activity has occurred.
4.3 If Lead Provider fraudulently adds Actions or clicks or inflates Actions or clicks by fraudulent traffic generation (as determined by the LDN, such as intentional pre-population of forms or mechanisms not approved by LDN), Lead Provider will forfeit its entire commission for all Postings and it’s account will be terminated. In the event Lead Provider uses names/email addresses that have not been “Verified” or “Confirmed” or “Double-Opted-In” in its marketing program, Lead Provider will forfeit its entire commission for all Postings and their account will be terminated. LDN will have the right to “seed” the names/email addresses provided to client with fictitious test names which will not complete the verification process in order to assure compliance with this provision.
4.4 Lead Provider acknowledges that if it receives notice that fraudulent activities may be occurring on Lead Provider’s Site or related media, and Lead Provider does not take any actions to stop the fraudulent activities, then Lead Provider will be solely responsible for all associated costs and legal fees resulting from the fraudulent activities.
4.5 Lead Provider represents and warrants that its Lead Provider’s Site shall: (i) Not infringe upon the personal rights, intellectual property rights, or copyrights of any person or entity; (ii) Not contain racially discriminatory or hate-mongering content; (ii) Not contain gratuitous violence, obscenity, or profanity; (iv) Not contain material that is defamatory or libelous; (v) Not promote any illegal activity including but not limited to the promotion of gambling, illegal substances, software piracy, or hacking; and (vi) Not spoof, or redirect, traffic to or from any adult-oriented websites.
4.7 Indemnification. Lead Provider shall defend, indemnify and hold harmless LDN and Advertisers from and against all claims, suits, demands, damages, liabilities, losses, penalties, civil fines, interest settlements, judgments, costs and expenses, including reasonable attorneys fees, incurred, claimed or sustained by LDN or Advertiser arising directly or indirectly from (i) Lead Provider’s breach or non-compliance with any term of this Agreement; (ii) Lead Provider’s violation or alleged violation of any law, statute, regulation, or ordinance arising from Lead Provider’s promotional activities; (iii) Lead Provider’s participation in the Lead Provider’s Program; (iv) any claim that LDN is obligated to pay tax obligations in connection with payments made to Lead Provider; and (v) any violation or alleged violation by Lead Provider of any rights of another, including breach of another’s intellectual property rights. LDN and/or Advertiser shall promptly notify Lead Provider of any claim that may give rise to Lead Provider’s indemnification obligations.
4.8 LDN shall be allowed to report all known and/or suspected fraudulent conduct to interested parties and to make such conduct public. Lead Provider agrees not to hold LDN liable for the consequences of such reports and acknowledges that it shall be in LDN’s sole discretion to determine whether or not fraudulent conduct has occurred or is suspected.
5. ACCOUNTING AND PAYMENT PROCEDURES
5.1 LDN pays out on valid and unique Leads as Net 14. Payments are calculated every other Friday and checks issued immediately after calculation. The first payment will be made on the second Friday after Publisher enrolls in the Publisher Program. The minimum check value that will be issued in any period is $50.00. Commissions less than this amount will be rolled over to the following period’s commissions. Final Lead determination based on LDN’s sole discretion.
5.2 Payment will be made in accordance with LDN’s tracked applications. If redirect rates fall below eighty percent (80%), LDN reserves the right to only pay Lead Provider for successfully redirected Leads based on LDN stats.
5.3 In the event that Lead Provider is an active Advertiser of LDN and fails to provide payment to LDN in accordance with the payment terms of the Advertiser Agreement, LDN reserves the right to off-set any and all amounts owed to LDN for its services under the advertiser Agreement from the commissions earned by Lead Provider under this Agreement.
5.4 LDN and Lead Provider both retain the right to audit the other party’s books and records for the purpose of verifying lead data and payments. The party initiating the audit shall be responsible to pay the costs of the audit. The audit shall be conducted by a nationally recognized accounting firm and specifically by certified public accountants. No more than two audits may be initiated by the same party in any twelve (12) month period. The party initiating the audit must provide reasonable notification to the party being audited of the intention to audit and the audit shall be scheduled to take place only upon a mutually agreed upon date, time and location. Further, the parameters and scope of the audit shall be discussed and planned in advance between the parties hereto and the auditor so as to minimize the disruption to the ongoing business of the party to be audited. If the audit reveals a discrepancy greater than five percent (5 %) between the numbers provided by the party being audited and the numbers revealed by the audit or that fraudulent activity has taken place, the party being audited shall be responsible to reimburse the party who initiated the audit for all amounts paid by the initiating party to the company conducting the audit.
6. TERM OF SERVICE
6.1 This Agreement will commence on the Effective Date and will continue for a period of twelve (12) months (the “Term”), subject to the following terms and conditions contained in this Section 6.
6.2 The Term of this Agreement will automatically renew for successive twelve (12) month periods. Either party may terminate this Agreement at any time and for any reason upon giving the other party three(3) business days prior written notice.
6.3 Upon written notice, either party may immediately terminate this Agreement if the other party is in breach of any representation, warranty or covenant contained in this Agreement.
7. CONFIDENTIAL INFORMATION
7.1 The term “Confidential Information” means any confidential, nonpublic or proprietary information concerning either party’s products and services including, but not limited to, information concerning either party’s partnerships, marketing plans or strategies, technology, customer or contact lists, relationships with third-party companies any other information that the receiving party should reasonably know is confidential or proprietary.
7.2 Each party covenants and agrees that it will not disclose Confidential Information to any third party (except parents, affiliates, employees, agents and subsidiaries with a reasonable need to know provided that each such parent, affiliate, employee, agent and subsidiary agrees to be bound by this provision prior to disclosure), copy, use or modify Confidential Information received from the disclosing party for any purpose not authorized the disclosing party. This covenant will be enforceable during the Term of this Agreement and will continue to remain enforceable after the termination or expiration of this Agreement for a period of five (5) years.
7.3 The confidentiality and disclosure requirements contained in this Section 6 shall not apply where the subject Confidential Information: (a) already was in the disclosing party’s possession and was free of any obligation of confidence at the time of the disclosure; (b) is rightfully received by the disclosing party from a third party legally in possession of such information and that had the right to disclose such information; (c) is or hereafter becomes public knowledge through no act or fault of the disclosing party; (d) is proven by written evidence to have been independently developed by the disclosing party without any reference to the Confidential Information; or (e) is disclosed by the disclosing party pursuant to the requirement or request of a governmental or judicial entity, or pursuant to the operation of law, provided the other party is given reasonable advance notice by the disclosing party of any such requirement or request.
8.1 Each Party represents and warrants that:
- it has all power and authority to enter into this Agreement and has duly and validly authorized this Agreement;
- it shall be in good standing in the state, territory or other jurisdiction where incorporated, formed or organized; and
- it will fulfill all of its responsibilities pertaining to this Agreement, in a timely and workmanlike manner.
8.2 In addition, LDN requires that each party it contracts with to offer Loan Related Products, represents and warrants that:
- it will Comply with all applicable Federal and State laws and regulations;
- it will be duly licensed to offer the Loan Related Products by all applicable Federal and/or State regulatory agenciesand/or bodies, and shall immediately remedy the suspension, termination or other loss of such licenses;
- it shall be in good standing in the state, territory or other jurisdiction where incorporated, formed or organized;
- it shall notify LDN if it receives any correspondence from a US state or federal agency which suggests, raises questionsabout or contemplates an investigation with respect to any allegations of wrong doing with respect to its business
practices (in which case LDN will notify Lead Provider if applicable; and
- it acknowledges and agrees that it, as well as any and all Loan Related Products, will comply with applicable federal and/orstate laws, rules, regulations, court orders, judgments and decrees including, but not limited to, laws relating to usury.
9. LIMITATION OF LIABILITY; INDEMNIFICATION
9.1 IN NO EVENT WILL LDN OR ITS RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, SHAREHOLDERS, TECHNOLOGY, AFFILIATES, DISTRIBUTION PARTNERS OR AGENTS BE LIABLE TO THE LEAD PROVIDER, ITS CUSTOMERS OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.2 Each party will defend, indemnify, and hold harmless the other party, and their respective directors, officers, members, shareholders, technology, employees, affiliates and agents from all claims, actions, losses, liability, damages, costs and expenses (including reasonable attorneys’ fees and expenses) (collectively “Claims”) arising from any breach of this Agreement including, but not limited to, each party’s representations and warranties.
9.3 Each party agrees:
- to promptly notify the other party in writing of any Claim that it becomes aware of and provide the other party with the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense; and
- to cooperate fully with the other party, at that other party’s expense, in defending or settling such Claim;Subject to the following reservation:
- LDN reserves the right, at its own expense, to assume the exclusive defense and control of any Claim subject to indemnification by LDN hereunder.
Any notice under this Agreement must be in writing and will be deemed to have been duly delivered if hand-delivered, mailed postage-prepaid to the respective address of each party set forth in the IO or to such other address as each party may designate or sent by facsimile electronic transmission to the FAX number of the respective Party.
If to LDN:
Lender Direct Network, LLC
6465 E. Johns Crossing, Suite 200
Johns Creek, GA 30097
11. DISPUTE RESOLUTION
11.1 Before undertaking any arbitration or litigation, the parties will make reasonable efforts to resolve all disputes informally, including but not limited to, a conference meeting between executive officers of LDN and Lead Provider who have authority to resolve the dispute.
11.2 This Agreement will be governed, interpreted, construed and enforced in all respects in accordance with the laws of the State of Georgia, without regard to any conflicts of laws principles. Each party agrees that any controversy or claim between the parties will be determined first pursuant to Article 11.1 of this Agreement and secondly, if that fails, by either arbitration or litigation in the courts located in Fulton County, Georgia.
11.3 If any litigation or arbitration proceeding is commenced in connection with this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees (including allocated costs for in-house legal services), costs, interest and necessary disbursements incurred in such action or proceeding, as determined by the applicable court or arbitrator.
12. GENERAL PROVISIONS
12.1 Except as otherwise provided for in this Agreement, any amendment or modification to this Agreement must be in writing and signed by both parties.
12.2 This Agreement will be binding upon and will inure to the benefit of each party and its successors and assigns; provided that, Lead Provider will not assign or transfer its rights under this Agreement by operation of law or otherwise, without LDN’s prior written consent; provided, however that Lead Provider may assign its rights and obligations to its parent, subsidiary or affiliate as long as the assignment does not result in a substantial change to the terms of service or otherwise cause a breach of this Agreement.
12.3 The waiver or failure of either party to exercise any rights provided for in this Agreement will not be deemed a waiver of any further or future right under this Agreement.
12.4 The invalidity or unenforceability of any term or provision in this Agreement will not affect the validity or enforceability of any other term or provision in this Agreement.
12.5 If Lead Provider is more than one person or entity, each person or entity, as a signatory to this Agreement, agrees to be jointly and severally liable for all of Lead Provider’s obligations under this Agreement.
12.6 This Agreement, together with the IO, any addendums, and any Exhibits referenced herein, are the final, full and exclusive statement of agreement between LDN and Lead Provider with respect to the subject matter set forth herein. The terms and conditions contained in this Agreement supplement the IO. Terms not defined in this Agreement will have the meaning set forth in the IO. Where the terms of the most recent IO contradict this Agreement, the IO terms shall govern. This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the parties with respect to the transactions set forth herein.
12.7 This Agreement may be executed in counterparts and, when fully executed, will be deemed effective on the Effective Date. The executed Agreement may be delivered by electronic facsimile transmission.
12.8 The relationship of LDN, LLC and Lead Provider established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representations, warranties or covenants, or assume or create any obligations, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives.