These Lead Purchase Canada Auto Dealership – Terms and Conditions (“Terms”), together with the terms of the / any insertion order, term sheet or similar document referencing these Terms (“Insertion Order”) constitute a legally binding and enforceable purchase agreement (the “Agreement”) by and between (1) the entity agreeing to these Terms on any Insertion Order through the signature, manual or electronic acceptance by an authorized representative (“Auto Dealership”); and (2) LendingArch Financial Inc. a company incorporated pursuant to the Laws of Alberta. (“Company”). These Terms shall be deemed incorporated by reference into any Insertion Order between the parties.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
LendingArch Financial Inc. (“LAF“) with its address at Suite #213, 3553 – 31st Street NW, Calgary AB, T2L 2K7
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
- General Structure
Dealer is in the business of the financing and sale of vehicles and, if required, facilitating automotive loans or leases through its network of Lenders, related or non-related to the Dealer, in support and in order to facilitate the sale of a vehicle to Canadian residents. LAF will introduce Applicants, as subsequently defined, to the Dealer for the purpose of the Applicant purchasing a vehicle and obtaining financing from or through the Dealer.
- “Applicant” means any applicant, that completes the borrower flow on the online platform operated by LAF or one of LAF’s subsidiary, partner, or affiliate sites and submits that information set to LAF and which LAF has subsequently sent to the Dealer, in the name or names instructed by the Dealer;
- “Business” means the sale of leads including, but not limited to, auto loan leads to auto dealerships and auto loan providers;
- “Confidential Information” means information that is treated as confidential and proprietary by LAF or Dealer, as applicable, including, without limitation, consumers’ 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, in each case whether spoken, written, printed, electronic or in any other form or medium but for greater certainty shall exclude, the existence of this Agreement and its terms (other than with respect to pricing) and the fact that the Dealer acquires leads from LAF;
- “LT” means a live transfer, being an Applicant who has been contacted by LAF, or who has contacted LAF, by telephone and has been transferred to a salesperson at the Dealer;
- “Pricing List” means LAF’s pricing list for debt leads in effect from time to time, as may be amended pursuant to Section 4.
- “Web Lead” means a Lead which relates to an Applicant who has submitted information through the use of LAF’s web portal platform.
- Lead Order
- The Dealer shall advise LAF from time to time of the number of Applicant’s whose information it desires to be sent from LAF (each, a “Lead“) in the ensuing month (such notice being a “Lead Order“), which Lead Order shall specify the number of LT’s it desires to receive, if any, and the number of Web Leads that it desires to receive, if any (a “Lead Number Order”) and the geographic regions in which the Applicants reside for which it desires to obtain Leads.
- The Dealer acknowledges and agrees that the number of Leads reflected in a Lead Order represents only the maximum number of Leads for which the Dealer is willing to pay, that LAF may be unable in any given month to accommodate such number of Leads and that LAF shall be obligated only to use its reasonable commercial efforts to provide such number of Leads. Any failure of LAF to provide the number of Leads specified in a Lead Order shall not constitute a breach of this Agreement and any payments previously made by the Dealer for the number of Leads reflected in a Lead Order, but not delivered by LAF, shall constitute a pre-payment for such Leads which are to be delivered by LAF in the future.
- In the event that LAF has, due to inadvertence or for any other reason, provided the Dealer with a number of Leads which is in excess of the Lead Order, or with Leads relating to Applicants who reside outside of the geographic region in which the Dealer has requested Leads (collectively “Excess Leads“), the Dealer shall have five (5) calendar days from the date of receipt of such Excess Leads to notify LAF of such Excess Leads, object to such Excess Leads and to return such Excess Leads to LAF. In the event that the Dealer fails to notify LAF and fails to object to such Excess Leads within such five day period the Dealer shall be deemed to have requested and accepted such Leads and shall be obligated to promptly pay LAF for such Excess Leads at the same price agreed for Leads hereunder.
- LAF Compensation
- For each Lead sent from LAF to the Dealer, Dealer shall compensate LAF at a rate of $ N/A per Web Lead and $N/A per LT, or if no amount is specified, then pricing will be in accordance with the Insertion Order “IO”. If no price is listed on the Insertion Order then the price will be in accordance with the LAF Pricing List. LAF may amend or replace the Pricing List from time to time at its full discretion, which amendment shall apply to all Lead Orders placed after the time of such amendment.
- Payment Terms
- In consideration for the services rendered by LAF hereunder, Dealer agrees to pre-pay LAF the compensation described in Section 4 at the time of submission of the Lead Order, for the ensuing months requested Lead Order, via EFT, Wire, Direct Deposit or Credit Card. A 2% administration fee will be applied to all credit card orders. The Dealer acknowledges that once payment is received by LAF, it could take between 1 business day and 5 business days, to commence delivery of Leads, dependent on a number of factors including but not limited to the jurisdiction of the Lead Order, the volume requested, the timing of the order, and any other factors in relation to LAF’s Lead generation program. There is no guarantee that such order will be filled within the month;
- The Dealer acknowledges and agrees that the amount and total cost of the submitted Lead Order shall be definitive, shall not be the subject to set off or dispute by the Dealer. The Dealer shall be obligated to pay for all Leads delivered by LAF pursuant to a Lead Order and the Dealer acknowledges that they shall not attempt to “charge back” or cancel any such orders. The Dealer further agrees that it shall provide to LAF a consent judgment in favor of LAF for the full amount of any such part of the order which is not paid by the time such payment is due (including in respect of any Excess Leads) and that in the event of such non-payment LAF may take any and all steps as it considers appropriate in relation to the enforcement and collection of the amounts due and owing.
- Information Captured by LAF
The Applicants information that will be provided to Dealer will generally include the Applicant’s: name, email, phone, address, employment status, employer name, stated income, date of birth, ownership or rental status of home and amount of monthly payment for rent or mortgage, stated credit score as well as consent for a credit check by LAF and/or by the Dealer. The Dealer acknowledges that not all applications 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 LAF, such application contains a shorter data set and the Dealer will be provided with more limited Applicant information).
- Quality Insurance
Subject to the below, if an Applicant’s information is provided to the Dealer and the application is rejected by the Dealer for the reason(s) outlined in the LAF replacement policy, then the Dealer will notify LAF in accordance with the replacement policy guidelines, LAF will subsequently verify the information provided, and once LAF has confirmed that the requested replacement falls within the terms of LAF’s replacement policy, the Applicant’s information will be replaced by a fresh applicant, free of charge. All replacements must be in accordance with LAF’s stated return policy. LT’s will not be covered by the LAF replacement policy and are not eligible for replacements under any circumstances.
- Buyer Access to Applicant
LAF agrees to provide Dealer with direct access to Applicant for the purpose of obtaining necessary documentation and verification of information necessary to underwrite and fund the Applicants loan / vehicle purchase request.
- Ownership of Applicant Data
Subject to the terms and conditions of this Agreement, LAF hereby grants to Dealer a limited, non-exclusive, revocable, personal license to use to any personal information of each Applicant provided to Dealer under this Agreement (“Applicant Information”) for the sole purpose of: (i) attempting to fund each such Applicant’s requested loan; and/or (ii) finance, lease or sell a vehicle to said Applicant.In addition to its other obligations hereunder, Dealer shall:
- use such the Applicant Information only for those purposes authorized above in this Section 9;
- promptly advise LAF of any request by an Applicant to access, correct or otherwise challenge the accuracy of said Applicant’s Applicant Information, or any other communication received by Dealer in respect of such Applicant Information (including, without limitation, any withdrawal or variation of consent by an Applicant) and to work, in a timely manner, with LAF to respond to such requests (which response shall first be approved by LAF), including without limitation, by providing access to, correcting and ceasing to use or disclose such Applicant Information as requested by such Applicant;
- use all reasonable efforts to protect and safeguard such Applicant Information, including, without limitation, to protect such Applicant Information from loss or theft, or unauthorized access disclosure, copying, use, modification, disposal or destruction;
- only use, disclose, process, store or enable access to such Applicant Information in Canada or such other jurisdictions as LAF may approve in writing from time to time; and
- return, delete or render irretrievable any such Applicant Information in its custody or control at the request and direction of LAF at any time and, in any event, at the expiry or termination of this Agreement.
Buyer acknowledges and agrees that:
- LAF retains the exclusive ownership of all Applicant Information and all intellectual property rights therein;
- such information is the confidential information of LAF;
- Dealer may not sell, license, provide or otherwise disclose any Applicant Information to any third party (including any affiliate of Dealer), without the prior written consent of LAF;
- Dealer shall comply with all applicable law, and LAF’s reasonable instructions, with respect to any Applicant Information disclosed to Dealer in connection with this Agreement; and
- in the event of any unauthorized, unlawful, and/or unintended processing, access, use, disclosure, exposure, copying alteration, loss, disposal or destruction of Applicant Information, the Dealer shall immediately notify LAF and cooperate with LAF’s reasonable requests to investigate and remediate such incident and provide appropriate response and redress.
Dealer agrees that: (i) LAF has the right to market to an Applicant for any loan categories not described in Section 1 hereto, and with respect to ongoing remarketing campaigns; (ii) each Applicant is free to contact another auto dealership; and (iii) LAF will not be responsible if an Applicant contacts or enters into an arrangement with another auto dealership.
If Dealer rejects an Applicant for any reason within 72 hours of the date of the delivery of the Lead to Dealer, or a successful sale is not completed for any reason within 14 days upon which such Lead is delivered to Dealer: (i) the license granted by LAF to Dealer in respect of said Applicant’s Applicant Information shall automatically be terminated; and (ii) LAF retains the right to: (x) aid such Applicant in obtaining a loan or vehicle from other sources; and (y) remarket any such Lead towards any other prospective dealership.
- Independent Parties
The Dealer acknowledges and confirms that LAF is an independent entity and not an agent or employee of Dealer.
- 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 Province of Alberta, Canada and the Federal Laws of Canada applicable therein, without regard to conflict of laws principles.
The initial term of this Agreement shall be for thirty (30) days. After such initial term, this Agreement shall automatically renew for successive thirty (30) day terms unless previously terminated by either party at any time in accordance with Section 13.
This Agreement can be terminated at any time, on five (5) days written notice from either party, provided that no such termination shall effect the terms of Section 15 which provision shall survive any such termination. In the event of termination, Dealer must pay any outstanding balances owed to LAF, including any balance owing for the remaining amount of the ensuing month’s order (if any), immediately upon termination. Dealer acknowledges that no refunds will be given for orders placed, and paid for, under any circumstances. In the event of any breach of the terms of this Agreement by the Dealer (including any breach of a representation or warranty herein) LAF shall be entitled to terminate this Agreement immediately and, without limitation to any other remedies available to it hereunder or under applicable law, may cease delivery of any Leads to the Dealer, without any refund or return of any amounts previously paid by the Dealer in respect of Leads which have not been previously delivered.
- Representations and Warranties
The Dealer represents, warrants and confirms that:
- 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.
- 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.
- this Agreement constitutes a legal, valid, binding and enforceable obligation of Dealer 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.
- 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 Dealer and Dealer has read this Agreement and understands the contents hereof and has not relied upon any advice from LAF.
- it will not make any representations or warranties, or provide any information about LAF or its products, services or affairs, as applicable, other than what is explicitly conveyed and agreed to by LAF.
- there are no suits, actions or proceedings against or affecting Dealer, or any of its directors, officers, agents or employees, before any court, governmental body (including any regulatory authority) or arbitrator (nor to Dealer’s knowledge, any such actions pending or threatened in writing) which are likely to materially adversely affect Dealer’s ability to perform its obligations hereunder and Dealer is not in default with respect to any order of any court, governmental body (including any regulatory authority) or arbitrator which materially adversely affects Dealer’s ability to perform its obligations hereunder.
- LAF makes no representations or warranties as to the fitness for purpose of the Leads or as to the conversion rate which may be experienced or expected by the Dealer in relation to such Leads. The Dealer shall accept all Leads delivered by LAF 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 LAF on the basis of such quality or convertibility.
- It shall at all times communicate with LAF 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 LAF’s officers, employees and consultants.
- It has reviewed LAF’s applicable return policies and shall not abuse such policies.
The representations and warranties set out above are true and correct as of the date of this Agreement and will remain so throughout the term of this Agreement. Dealer will advise LAF immediately if the foregoing changes.
- Confidential Information, Non-Solicitation and Non-Disparagement
- 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 (or other third party), 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.
- 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:
- 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
- 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 15 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.
- During the term of this Agreement and for a period of 12 months following the expiration or termination of this Agreement for any reason, the Dealer shall not:
- solicit or entice, or attempt to solicit or entice, either directly or indirectly, any customer of LAF, to become a customer of any business or enterprise that competes with LAF for any Business, or to cease or limit doing any Business with LAF; or
- solicit or entice, or attempt to solicit or entice, either directly or indirectly, any employee or independent contractor of LAF to become employed or retained by any business or enterprise that competes with LAF for any Business, or to cease or limit their employment or retainer with LAF.
- Unless otherwise required by applicable law, the Dealer shall not, on its 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 rumors, 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 LAF or its respective affiliates or any of LAF’s directors, managers, officers, employees or equity holders.
- The Dealer agrees that in the event of a breach or threatened breach by Dealer of any of the provisions of this Section 15, LAF shall be entitled to obtain, in addition to any other rights, remedies or damages available to LAF at law or in equity, an interim and permanent injunction or specific performance in accordance with the laws of Alberta, and that LAF shall not have to prove damages or post any bond or deposit in order to prevent or restrain such breach or threatened breach by the Dealer or otherwise enforce the terms of this Agreement. LAF shall be entitled to all of its costs and expenses incurred in order to obtain such injunctive relief or specific performance, including reasonable solicitor and client legal costs and disbursements.
- The obligations set out in this Section 15 shall survive termination of this Agreement.
- Dealer shall indemnify and hold harmless LAF, 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 LAF in the enforcement of this Agreement or arising directly or indirectly from breach of this Agreement, negligent acts or omissions, or willful misconduct of Dealer including its personnel and affiliates;
- LAF shall indemnify and hold harmless Dealer, 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 arising directly or indirectly from material breach of this Agreement (including by any abuse of LAF’s return policies), grossly negligent acts or omissions, or willful misconduct of LAF including its personnel and affiliates.