Lead Purchase Terms & Conditions

These Terms and Conditions (the “Terms“), together with the terms of the attached (above) 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 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 business and/or 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:
- “Affiliate” has the meaning ascribed to such term in the Business Corporations Act (Alberta);
- “Agreement” has the meaning indicated on the cover page of these Terms;
- “ADF” means an Azure Data Factory email through which the Company send Leads directly to the Buyer’s customer relationship management software;
- “API” means the application programming interface enabling Leads to be transmitted to, and viewed by, Buyer.
- “Applicant” means any applicant that completes the borrower flow, questionnaire or any other type of data entry on the online platform operated by the Company or one of the Company’s subsidiary, partner or affiliate sites and directly or indirectly submits that information set to the Company;
- “Business” means the sale of Leads including, but not limited to the sale of financial or non-financial related Leads to buyers;
- “Business Day” means any day other than Saturday, Sunday or another day on which commercial banks located in Calgary, Alberta are authorized or required by law or executive order to be closed.
- “Buyer” means the buyer of the Leads;
- “Buyer Representative” means any sales representative, employee or agent of the Buyer;
- “CASL” has the meaning described in Section 12(a);
- “Collateral” has the meaning described in Section 8;
- “Company” means LendingArch Financial Canada Inc.;
- “Company Privacy Policy” means the Company privacy policy maintained on the Company website, as may be amended from time to time;
- “Company Representatives” has the meaning described in Section 7(d);
- “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: insurance, loans, debt consolidation, debt services, mass tort, home services, ACA, mortgages, and as may be expanded based on the Company’s Business;
- “Confidential Information” has the meaning described in Section 17(a);
- “Court” has the meaning described in Section 30;
- “CRM” customer relationship management software;
- “Disclosing Party” has the meaning described in Section 17(b);
- “Effective Date” is the date of signing as indicated by the IO;
- “Excess Leads” has the meaning described in Section 4(c);
- “Force Majeure Events” has the meaning described in Section 28(a);
- “Impacted Party” has the meaning described in Section 28(a);
- “Indemnified Parties” has the meaning described in Section 22(a);
- “Invoice” has the meaning described in Section 7(a);
- “Initial Term” has the meaning described in Section 14;
- “Lead” means any data or information set obtained as a result of an Applicant completing a borrower flow, questionnaire or any other type of data entry: (i) on the Buyer’s platform(s) and landing pages and sites resulting from a link out, or traffic driven by the Company to the Buyer; or (ii) on the online platform operated by the Company or on one of the Company’s subsidiary, partner or affiliate sites, which the Company subsequently sends to the Buyer or as otherwise instructed by the Buyer;
- “Lead Information” means any personal information provided to the Buyer in a Lead under this Agreement;
- “Lead Number Order” has the meaning described in Section 4(a);
- “Lead Order” has the meaning described in Section 4(a);
- “Losses” has the meaning described in Section 22(a);
- “Notice” has the meaning described in Section 22(b);
- “Opt-Out” has the meaning described in Section 12(i);
- “Opt-Out Mechanism” has the meaning described in Section 12(h);
- “Party” means the Company or the Buyer, with “Parties” meaning the Company and the Buyer;
- “Pre-Payment” has the meaning described in Section 7(f);
- “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;
- “Publishers” has the meaning described in Section 21;
- “Recipient Party” has the meaning described in Section 17(b);
- “Term” means the term of this Agreement in accordance with Section 14; and
- “Triggering Event” means, the Buyer failing to pay any amount owing to the Company under or in connection with this Agreement within 60 calendar days of such amount becoming due.
Purchase and Sale of Leads
- During the Agreement’s Term, the Company agrees to sell Leads to the Buyer, and the Buyer agrees to buy Leads from the Company.
- 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(b).
Lead Order
- On or before the first day of each month, the Buyer shall provide notice in writing, which notice may be delivered by, but is not limited to, email, text message, WhatsApp or Skype, to the Company with respect to the number and type 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 and any other criteria requested by the Buyer at the time the Lead Order is provided. 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.
- 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 is only obligated to use 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. Pursuant to Section 7(f), upon request by the Company from time to time, the Buyer shall make a Pre-Payment for Leads.
- 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 Number or Leads relating to Applicants who reside outside of the geographic region requested by the Buyer (collectively “Excess Leads“), the Buyer shall have five (5) calendar days from the date of receipt of such Excess Leads to provide the Company with written notification objecting to such Excess Leads and shall return or destroy such Excess Leads as requested by the Company. In the event the Buyer fails to notify the Company and object to such Excess Leads within the designated period, the Buyer shall be deemed to have requested and accepted such Leads and shall be
- obligated to pay the Company for each such Excess Leads pursuant to the payment provisions in Sections 6 and 7.
- The Parties agree that, for the purposes of providing a Lead Order, written communication including but not limited to email, text message, WhatsApp or Skype, between the Company and a Buyer Representative, indicating each Party’s respective agreement to the terms of the Lead Order shall constitute an acceptable ‎form of written agreement. However, in no event shall such Lead Order be deemed effective until the Party ‎to whom a new or amended Lead Order is sent provides written confirmation and acknowledgement to the initiating Party ‎indicating its acceptance of such Lead Order‎.
Non-ExclusivityThis 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 10.
CompensationFor each Lead or applicable unreturned Excess Lead sent from the Company to the Buyer, the Buyer shall compensate the Company at the rate indicated in the IO.

Payment Terms

Unless otherwise specified in the IO or the Lead Order, the Company shall email weekly 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 35(b). For greater certainty, the Buyer shall not require the Company to issue an Invoice to any other person.
- 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) credit card fees pursuant to Section 7(c), and such Invoices shall be definitive. Invoices will be compiled, calculated and derived solely from the data, records and systems of the Company.
- The Buyer acknowledges Invoices are not subject to set-off, dispute, chargeback or cancellation by the Buyer, other than in accordance with the terms of this Agreement. For greater certainty, the Buyer acknowledges that the Company is not responsible for making, and shall not make, any chargeback payments arising from a credit card payment made by the Buyer to the Company for an amount that the Buyer disputes or otherwise claims to be invalid under any circumstances.
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 suc
The Buyer agrees to pay the Company for any credit card fees incurred by the Company in connection with credit card payments made by the Buyer pursuant to Section 7(b). Credit card fees will be charged back to the Buyer on the applicable Invoice.

Company account and payment information may only be updated, altered or changed through the following three-step verification process:

the Buyer will receive a written request with revised payment instructions via couriered letter or an email sent by Jay Modi, Paul Hadzoglou, Farhad Nabian, Nirdeep Grewal or any additional individual added as an authorized party accordance with Section 7(d)(v)
the Buyer must then obtain verbal confirmation of the written request, either in person or via a telephone call with any one Company Representative; however, to avoid caller ID spoofing, any such telephone call must be made from the Buyer to such Company Repres
prior to initiating the first payment using the updated payment instructions, the Buyer must provide written confirmation via couriered letter or email to each of the Company Representatives confirming such changes to the Company’s account and payment informati

for the purposes of this Section 6(c), please below find contact information for the Company Representatives:

Name	Contact Information
Jay Modi	Jay@consumergenius.com (403) 615-7708
Paul Hadzoglou	Paul@consumergenius.com (403) 200-4021
Farhad Nabian	Farhad@lendingarch.com (403) 616-2890
Nirdeep Grewal	Nirdeep@consumergenius.com

any of the Company Representatives may add additional or replacement individuals by providing notice and confirmation to the Buyer utilizing the same procedure as outlined in this Section 7(d) for changes in payment information.

The Buyer agrees to treat any requests to change or update payment information or Company Representatives by the Company as a sensitive matter and one that requires a high level of diligence and acknowledges that any payment made to an account that is not the Company’s or in which the verification process in Section 7(d) has not been followed, will not be considered as paid or received by the Company and the Buyer shall remain liable for any such payment to the Company.
Upon request by the Company, the Buyer shall make pre-payment for Leads subject to the IO or a Lead Order, which pre-payment shall constitute any payment made by the Buyer for Leads subject to the IO or Lead Order at any time prior to the Company fulfilling the IO or Lead Order and delivering such Leads to the Vendor (“Pre-Payment“). In no event shall any Pre-Payment be refundable.

Security
- 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.
- 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.
- 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.
- This Section 7 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
- 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. By way of 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.
- The Company shall 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.
Ownership of Leads
- The Company shall have sole and exclusive ownership of any Leads or Excess Leads delivered to the Buyer under this Agreement and all rights associated therewith, including, without limitation, all Lead Information contained therein, as well as, all related information and all intellectual property rights therein. For greater certainty, the Buyer will retain no rights in the foregoing.
- Subject to Section 10(a), the Company hereby grants to the Buyer a limited, non-exclusive, revocable, personal license to use any 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 as may be approved by the Company.
- Buyer acknowledges and agrees that:
  - Lead Information is Confidential Information (as defined herein) of the Company;
  - the Buyer shall not sell, re-sell, license, provide or otherwise disclose any Lead Information to any third party (including any affiliate of the Buyer), without the prior written consent of the Company;
  - at all times the Company retains the right to contact an Applicant with respect to ongoing remarketing campaigns and market additional products or services to the Lead;
  - each Applicant is free to contact other vendors or service providers and the Company is not liable for an Applicant contacting or entering into an arrangement with another vendor or service provider; and
  - if the Buyer rejects a Lead for any reason, regardless of whether payment has been or will be made, the license granted pursuant to Section 10(b) shall immediately and automatically be terminated and the Company retains the right to remarket any such Lead and aid such Applicant in obtaining any products, services or financing assistance from other sources, which in either case may involve competitors of the Buyer.
  - any Leads delivered to the Buyer through a link out or driven to the Buyer’s landing pages or platform through traffic originated from the Company will be jointly owned by the Company and the Buyer, and the Buyer will furnish such Lead data to the Company upon request.
Buyer Access to Leads
The Company agrees to provide Buyer with direct access to Leads through API, ADF, CRM, email or other reasonable means so that the Buyer may verify information and obtain the documentation necessary to provide Applicants with financial or non-financial goods, products and services or to underwrite and fund such Applicants requested purchase or loan.
Regulation and Requirements for Buyer Use of Leads
- The Buyer shall comply with the Company’s reasonable instructions and all applicable laws to ensure any Leads and Lead Information disclosed to the Buyer in connection with this Agreement are used and dealt with by the Buyer in compliance with applicable advertising and privacy laws including, the Telephone Consumer Protection Act and CASL, as amended and superseded from time to time, all Privacy and Data Protection Requirements, and any other applicable laws that may include, but are not limited to, banking, marketing, licensing, lending, servicing and collection laws.
- The Buyer acknowledges the Applicant’s prior express invitation, permission and consent forwarded by the Company may not cover the Buyer. Accordingly, the Company recommends the Buyer obtain new express invitation, permission and consent from the Applicant and if such recommendation is not followed, the Company will not be liable to the Buyer for any losses, claims or damages resulting from non-compliance with such recommendation.
- The Buyer shall also ensure its internal policies and practices are in compliance with applicable laws. The Company shall have the right, but not the obligation, to review the Buyer’s internal policies and practices for compliance with all Privacy and Data Protection Requirements. The Buyer shall take all reasonably necessary steps to assist the Company’s review of the foregoing and agrees to amend or modify such terms and conditions or privacy policies, as is reasonably requested by the Company.
- The Buyer must use all reasonable efforts to protect and safeguard Lead Information, including, without limitation, protection of such Lead Information from loss or theft, unauthorized access disclosure, copying, use, modification, disposal or destruction.
- The Buyer is only permitted to use, disclose, process, store or enable access to Lead Information in Canada or such other jurisdictions as the Company may approve in writing from time to time. In the event of any unauthorized, unlawful or unintended processing, access, use, disclosure, exposure, copying alteration, loss, disposal or destruction of Lead Information, the Buyer shall promptly notify the Company and co-operate with the Company’s reasonable requests to investigate and remediate such incident and provide appropriate response and redress.
- The Buyer must ensure it is in compliance with the most recently available public suppression list(s), do-not-call lists and unsubscribe lists and all applicable laws pertaining to the foregoing. The Buyer agrees to provide the Company with a copy of any suppression list, do-not-call list or unsubscribe list it maintains as of the Effective Date and will provide the Company with any such amended list(s).
- The Buyer shall promptly advise the Company of any request by an Applicant to access, correct or otherwise challenge the accuracy of said Applicant’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 an Applicant, and to work in a timely manner with the Company to respond to such request (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 Applicant.
- The Buyer shall provide an Applicant, for such Applicant’s use, with a clear, visible, simple to use, fully functional, text-only removal mechanism conforming to applicable law, allowing such Applicant to automatically opt-out of receiving the Buyer’s future emails (“Opt-Out Mechanism“).
- If the Buyer receives, via email, website or other means, an unsubscribe or opt-out request that is generated from the Opt-Out Mechanism or is otherwise provided to the Buyer regarding any communication sent to an Applicant pursuant to this Agreement (each an “Opt-Out“), such Opt-Out shall be complied with and recorded by the Buyer and the Buyer will promptly provide the Company with such Applicant’s name and contact information to ensure that such Applicant can be added to the appropriate suppression list, do-not-call list or unsubscribe list. Similarly, where an Applicant has opted out of receiving communications from the Company, the Company shall promptly provide such Applicant’s name and contact information to the Buyer. In connection with this Agreement, the Buyer and the Company mutually, and individually, agree to immediately cease communications with each Applicant that has selected to Opt-Out.
- If the Buyer continues to contact an Applicant who has selected to Opt-Out of receiving further communications, or fails to notify Company of such Opt-Out, then the Company shall not be held liable for any losses, claims or damages resulting from such communications or failure, and the Buyer shall fully indemnify the Company against any such losses, claims and damages. If any of the foregoing occurs, the Company reserves the right to immediately terminate this Agreement without prior notice.
- In addition to the Buyer’s other obligations pursuant to this Agreement, the Buyer agrees as follows:
  - to use Lead Information only for those purposes authorized in this Agreement;
  - to ensure that all Buyer services and conduct including, any communication or interaction with Leads, are performed in a professional and business-like manner and acknowledges and agrees that a breach to this Section 12(k)(ii) may damage the brand and reputation of the Company, or otherwise cause the Company irreparable harm;
  - to not resell any Leads or Lead Information provided by the Company nor shall the Buyer make any attempt at the foregoing;
  - to return, delete or render irretrievable any such Lead Information in its custody or control at the request and direction of the Company made at any time, and in any event, at the expiry or termination of this Agreement; and
  - in accordance with Section 22, Buyer explicitly agrees to indemnify the Company for any Losses as a result of the Buyer’s breach of this Section 12, including but not limited to, any claim pertaining to the failure of the Buyer to notify the Company of an Opt-Out under Section 12(i).
Independent Parties
For the purposes of this Agreement, the Company is an independent contractor 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 the transactions contemplated hereunder.
Term
Unless otherwise specified in the IO, the initial term of this Agreement shall commence on the Effective Date and continue for one year (the “Initial term“). After the end of the Initial Term, this Agreement shall automatically renew for successive one-year terms unless terminated by either Party, at any time, in accordance with Section 15.
Termination
- Either Party may terminate this Agreement at any time, by providing fifteen (15) Business Days’, written notice via email to the other Party, provided that:
  - upon receipt of the written notice, the Company may terminate the agreement immediately or any day prior to the 15^th day;
  - such termination shall not effect the terms of Sections 6, 7 or 15 through 22, which provisions shall survive any such termination;
  - Buyer will not be relieved from paying any balances outstanding under any Invoices previously issued to the Buyer pursuant to this Agreement; and
  - Buyer acknowledges that the Company will subsequently issue a final Invoice pertaining to the Leads and services provided for the complete, current month, such month being the month in which termination notice is provided, regardless of at which point in the month the termination notice was provided, and further agrees to remain liable for, and pay, the final Invoice in accordance with Section 7(b).
- Either Party may terminate this Agreement immediately upon written notice to the other Party in the event of any breach of this Agreement by the other Party and, subject to the terms of this Agreement, the non-breaching party shall be entitled to any other remedies available to it hereunder or under applicable law. In connection with this Section 15(b), the Buyer will remain liable for any balances outstanding prior to such termination date.
- Sections 6, 7 and 15 through 22 shall survive such any termination of this Agreement and shall continue in full force and effect.
Buyer Representations and Warranties
Buyer 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 and any amendments thereto, 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.
- The execution and delivery of this Agreement and any amendments thereto, 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.
- 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.
- 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.
- 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.
- 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.
- Information furnished by the Buyer to the Company pursuant to the due diligence questionnaire form requested by the Company under Section 9(b) of this Agreement shall be true and correct in all material respects.
- 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(j) is a material breach of this Agreement.
- 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.
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. Buyer will advise the Company immediately if the foregoing changes.
Confidential Information
- All 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, information regarding the following: (a) business strategies, policies and practices; (b) marketing strategies and studies, performance data, advertising, advertising strategies, advertising placement, Company Vertical flow process or materials, marketing campaign information and content including, creatives, user interface, branding, colours, logos, images, stylization, fonts; (C) the Disclosing Party’s (as defined below) intellectual property (in any stage of development), technical expertise and know-how, trade secrets, designs, software programs, hardware and system designs, processes, models, algorithms, code (source code, object code, programming code); (D) accounting and financial information, projections, price lists and pricing policies; (E) corporate, commercial, strategic, regulatory and legal information; (F) employee, customer or supplier information; (G) funnels, email lists, referral sources, service provider lists, site data; (H) an Applicant’s or other individual’s personal information and information pertaining to third-parties, Affiliates, partnerships and individuals involved, directly or indirectly, in the Parties’ business and the pricing under this Agreement; (I) data and details set forth in the IO or Lead Order as they relate to the Disclosing Party (as defined below); (J) the existence of any relationship between the Parties or the Terms or existence of this Agreement; and (O) all other information, whether written (or other forms of media) or oral, which, by its nature, or by the nature of the circumstances surrounding its disclosure, in each case whether spoken, written, printed, electronic or in any other form or medium and regardless of whether delivered or accessed by a Party prior to, or following, the Effective Date, shall constitute, “Confidential Information“.
- The Party receiving Confidential Information (“Recipient Party“) agrees to hold all Confidential Information in trust and confidence using commercially reasonable efforts, except as may be authorized by the Party disclosing the Confidential Information (“Disclosing Party“) in writing, and the Receiving Party shall not use Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (a) who need to know such Information in order for the Receiving Party to perform its obligations hereunder; and (b) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein and provided that the Receiving Party shall remain fully liable to the Disclosing Party for any breach of such agreement by its employees or advisers.
- Confidential Information shall not include any information that the Receiving Party can verify with substantial proof: (1) is generally available to or known to the public through no wrongful act of the Receiving Party; (2) was independently developed by the Receiving Party without the use of Confidential Information; or (3) was disclosed to the Receiving Party by a third-party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party.
- In the event that any Party receives a request to disclose all or any part of the Confidential Information of the other Party under applicable law, the Party receiving such request agrees to: (i) immediately notify the other Party, if lawful to do so; (ii) only disclose such portion of the Confidential Information as such Party is required, in the opinion of legal counsel; and (iii) exercise commercially reasonable efforts, at the expense of the other Party, to obtain an order or similar assurance that confidential treatment will be accorded to any Confidential Information required to be disclosed.
- The Parties acknowledge and agree that a material breach of this Section 17 would cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the Parties agree that the Disclosing Party may, in addition to all other remedies, seek preliminary and permanent injunctive relief or specific performance, without the requirement to post bond, for any threatened or actual breach of this Section 17.
- The Receiving Party shall, immediately upon request or upon termination of this Agreement, return or destroy all Confidential Information of the Disclosing Party and all copies thereof.
- This Section 17 shall survive any termination of this Agreement and the Parties’ confidentiality obligations will continue indefinitely for so long as the Confidential Information is considered a trade secret under applicable law, or for a period of 24 months if the Confidential Information does not rise to the level of a trade secret.
- The Company may use Buyer’s personal information in any manner consistent with the Company’s Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding the Company’s usage of publisher information, please refer to the Company Privacy Policy.
- In the event of any breach of this Agreement by the Buyer, this Section 17 shall be automatically amended to relieve and discharge the Company for all of the confidentiality obligations under this Section 17. For greater certainty, the Buyer shall continue to be bound by this Section 17 and shall be obligated to comply with its confidentiality obligations owing to the Company hereunder in all and any aspects.
Non-Competition
During the term of this Agreement and for a period of 24 months following the expiration or termination of this Agreement for any reason, the Buyer shall not, anywhere in Canada, on its own behalf or on behalf of or in connection with any person, either directly or indirectly, in any capacity whatsoever, including either individually, in partnership, jointly or in conjunction with any 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-Solicitation
- During the term of this Agreement and for a period of 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 do the following:
  - solicit, interfere with or entice, any customer of the Company or its Affiliates for the purposes of selling to such customer any products or services which are the same as or substantially similar to, or competitive with, the products or services sold or provided by the Company or its Affiliates in a manner which may reasonably be expected to result in such customer decreasing its business with, or ceasing to conduct business with, the Company or its Affiliates;
  - solicit, entice or hire, either directly or indirectly, any employee, officer, director, manager, consultant or contractor of the Company or its Affiliates that is currently, or has in the previous 24 months, been employed or contracted by the Company or its Affiliates and in the event that the Buyer discovers that they have hired a current or former employee, officer, director, manager, consultant or contractor of the Company or its Affiliates in violation of this provision, Buyer shall notify the Company of such hiring and the Company shall be entitled to request that the Buyer terminate the employment or contract of such person. In the event the Company makes such a request for termination, Buyer shall immediately terminate the employment or contract of such person.
Non-Disparagement
Unless otherwise required by applicable law, Buyer 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 the Company or its Affiliates or any of the Company’s or its Affiliates’ 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. Additionally, Buyer shall not commit any act which would reflect unfavorably upon the Company or make false or misleading representations or guarantees concerning the Company.
Non-Circumvent
The Buyer acknowledges that through the relationship contemplated herein, it may learn that certain media buyers, publishers, marketing partners or other third-party contractors (collectively “Publishers”) work with the Company. During the term of this Agreement and for a period of twenty-four (24) months following the expiration or termination of this Agreement, the Buyer agrees not to utilize knowledge of any Publishers that was gained through a relationship with the Company, to directly or indirectly, solicit such Publishers to enter into an agreement that would reasonably be expected to displace or negatively affect the Company’s relationship with such Publishers; provided, however, this prohibition will not apply to Publishers with whom the Buyer has an existing business relationship prior to the date hereof.
Indemnification and Limitation of the Company’s Liability
- Subject to the limitations described below, Buyer shall indemnify, defend, and hold harmless the Company and its directors, officers, representatives and agents (each, an “Indemnified Party“) from and against any claim, demand, action, judgment, decree, loss, damage, liability, cost and expense (including reasonable and documented out-of-pocket legal fees and expenses) (“Losses“) incurred by the Buyer, directly or indirectly, as a result of, in respect of or arising out of: (i) any breach or failure to perform or fulfill any covenant or obligation on the part of the Buyer contained in this Agreement or in any document given by them in order to carry out the transactions contemplated by this Agreement; (ii) breach by the Buyer of any of its representations, warranties or covenants contained in this Agreement; (iii) violation by the Buyer of any third party’s intellectual property right in connection with this Agreement, (iv) any negligent acts or omissions or willful misconduct of Buyer, including its personnel and Affiliates.
- The Indemnified Party will provide the Buyer with prompt written notice of all Losses of which it becomes aware (the “Notice“). The Notice must specify (to the extent the information is available): (i) the basis for the Losses; (ii) the claimant including, any third party claimant; and (iii) the estimated amount of the Losses. Failure to give Notice will not, however, relieve the Buyer of its indemnification obligations.
- After receipt of the Notice, if accepted as a valid indemnity claim by the Buyer, the Buyer will assume sole and exclusive control of the defence, compromise or settlement of all Losses, provided that: (i) the Indemnified Party agrees to provide reasonable cooperation to the Buyer at the Buyer’s expense in connection with the defence or settlement of all Losses; (ii) the Indemnified Party has at all times the right to fully participate in the defence at its own cost and expense; and (iii) the Buyer agrees to submit an application to the court to remove the name of the Company from the proceedings and records; (iv) the Buyer agrees to provide periodic updates to the Company on the proceedings; and (v) the Buyer will not acquiesce to any judgment or enter into any settlement which in either case imposes any obligation or liability on the Indemnified Party without its prior written consent.
Insurance
- Unless otherwise agreed to in writing by the Company, the Buyer shall at minimum, at its own expense, maintain in force during the term of this Agreement with reputable and financially secure insurance companies authorized to do business in Canada, reasonable and appropriate insurance in respect of its business operations, in an amount agreed to by the Company, 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; (b) to name the Company and its Affiliates as an additional insured; and (c) to furnish to the Company, at such times as the Company may request, a certificate of insurance evidencing all policies required to be in place and the insurance obtained.
- Each policy of insurance required to be placed and maintained by the Buyer pursuant to the provisions of this Agreement, shall contain a provision whereby the insurer is required to give thirty (30) days’ written notice to the Company prior to any material change, lapse or cancellation of the policy or policies of insurance. The Buyer shall also deliver such notice to the Company and any failure to provide such notice will constitute a breach under this Agreement.
- Each policy of insurance required to be maintained pursuant to this Agreement shall be primary and not excess or contributory to any policies of insurance that are maintained by the Company.
- Neither the providing of insurance by the Buyer in accordance with the requirements of this Agreement, nor the insolvency, bankruptcy or failure of any insurance company to pay any claim accruing shall be held to waive any of the provisions of this Agreement with respect to the liability of the Buyer or otherwise.
- All premiums, deductibles and self-insured amounts shall be at the sole cost and expense of the Buyer.
- 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.
Time is of the Essence
Time shall be of the essence in this Agreement.
Authorized Signatories
All executed Lead Orders will be deemed to have been executed by authorized Buyer Representatives and the execution and delivery of any such Lead 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.
Governing Law
This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Province of Alberta and the Federal laws of Canada applicable therein, without regard to conflict of laws principles. The Parties submit exclusively to the jurisdiction of the courts sitting in Calgary, Alberta.
Force Majeure
- 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“): (a) acts of God; (b) flood, fire, earthquake, tsunami, epidemics, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns, or other industrial disturbances; (i) telecommunication breakdowns or power outages or shortages; and (j) other similar events beyond the reasonable control of the Impacted Party.
- The Impacted Party shall give notice within five (5) 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 30 consecutive days following written notice given by it under this Section 25(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 31 of this Agreement, may be brought in the Court of King’s Bench of Alberta situated in the City of Calgary (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
- Subject to the rights granted by Section 8 and Section 17 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 Alberta Arbitration Act. The following provisions shall govern any arbitration hereunder:
  - The place or legal seat of arbitration shall be Calgary, AB.
  - There shall be one arbitrator agreed to by the Parties within 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 20 days, either Party may apply to the Court to have an arbitrator appointed.
  - The language of the arbitration shall be in in English.
- The arbitrator appointed under this Section 31 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:
  - prior to the appointment of an arbitrator; or
  - in the absence of the jurisdiction of the arbitrator to rule on provisional or conservatory measures in Alberta. 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.
- In addition to the authority conferred upon the arbitral tribunal by the Alberta 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.
- 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.
- 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.
- Any award of the arbitral tribunal shall be final, nonappealable, 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 ActionThe 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 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 from the Company or any matters related thereto.
Severability
In case any one or more of the provisions contained in this Agreement should be declared invalid or unenforceable, in any respect, by an arbitrator or court of competent jurisdiction, any such invalid or unenforceable provision shall be deemed to be severable and shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
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: 4500 Bankers Hall East, 855 2 Street SW, Calgary, AB T2P 4K7To Buyer: As per the IOor 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
- Assignment by the Company: The Company may assign its rights or obligations under this Agreement upon notification to the Buyer.
- Assignment by Buyer: 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 nothing in this Agreement shall prohibit the Buyer from assigning this Agreement or any part of this Agreement to one of its Affiliates; provided that the Buyer remains jointly and severally bound with such assignee by the terms and conditions of this Agreement so assigned.
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.
Entire Agreement
- This Agreement, being these Terms together with the IO and Lead Orders, as applicable, 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.
- Subject to section 37(c), 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.
- Notwithstanding the foregoing, the provision in writing of Lead Orders and the subsequent acceptance and approval of same, may be provided, accepted and approved by any representative, employee, or Agent of the Parties authorized to do so.
- All defined terms in this Agreement shall apply to any Lead Order, unless specifically defined in such Lead Order.
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.
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.