Terms of Service

CALL PURCHASE AGREEMENT

This Agreement (the “Agreement”) is made on Date of Acceptance (“Start Date”), between Fiat Partners (the “Call Buyer”) and Affiliate (the “Call Seller”), collectively referred to as the “Parties.” In consideration of the mutual covenants set forth herein, and intending to be legally bound thereby, the Parties agree as follows:

Online Agreement:

By checking the box and clicking “I Agree” on the application page, the Call Seller acknowledges that they have read, understood, and agree to the terms and conditions of this Agreement, which is hyperlinked here.

Service Category: Miscellaneous, determined by feed
Payout: Based on feed
Prohibited Billable Call Generation Methods: See Exhibit A attached hereto for Quality Control Guidelines
Data Provider Privacy: See Exhibit B attached hereto
Payment terms: Net 15 after month end

Mutual Representations and Warranties

Both Parties represent and warrant that:

a) They shall conduct all business, communications, advertising, marketing, sales, and transmissions in strict compliance with all applicable laws, including but not limited to the Controlling the Assault of Non-Solicited Marketing (CAN-SPAM) Act of 2003 and the Telephone Consumer Protection Act (“TCPA”), as amended, and other applicable rules and regulations, including, but not limited to, all laws, rules, and regulations governing:
e-mail marketing;
telemarketing;
call recording;
text message marketing;
marketing to minors.
b) They own or have sufficient rights in all advertising materials used; that the advertising materials are free of viruses and similar defects; and that use of the advertising materials do not infringe the rights of a third party or violate any applicable law.
c) They are duly organized, validly existing, and in good standing under the laws of the state of their formation. They have the requisite power to own and operate their properties and assets, and the requisite agreements addressing laws, rules, and regulations with their third-party affiliates and publishers, to carry on its business as now conducted and as proposed to be conducted.
d) They have all requisite power to execute and deliver this Agreement and to carry out and perform its obligations under this Agreement.

Mutual Term and Termination

This Agreement shall start on the Start Date and continue in perpetuity until modified in writing or terminated. Either Party may terminate this Agreement, with or without cause, by providing two (2) business days written or email notice to the other Party.

Mutual Confidentiality

The Parties hereby acknowledge that each Party has made, or may make, available to the other Party certain trade secrets (also known as “Confidential Material”). Confidential Material includes without limitation:

a) the identity and contact information of a Party’s customers, marketing affiliates, and publishers; and
b) this Agreement and any associated Insertion Order, campaign details, traffic sources, conversion rates, payment amounts.

The Parties acknowledge and agree that this information has independent economic value, actual or potential, that is not generally known to the public or to others who could obtain economic value from their disclosure or use, and that this information is subject to a reasonable effort by each Party and their respective affiliates to maintain secrecy and confidentiality. Except as essential to each Party’s obligations pursuant to, and as contemplated by, this Agreement (including the sharing of Confidential Material with the Parties’ respective affiliates necessary to the performance of each Party’s obligations under this Agreement), the Parties shall not use or make any duplication or other copy of Confidential Material.

Mutual Non-Interference

While the Parties recognize that they likely share common current, past, and future customers, affiliates, and publishers, they also agree to not interfere with each other’s said relationships. As such, during the term of this Agreement and for two years thereafter, neither Party shall use Confidential Material or trade secret information to directly or indirectly solicit any employee, publisher, affiliate, or customer to alter its relationship with the other Party or attempt to induce any such entity to cease doing business with said Party.

Non-Confidential Material

Confidential Material will not include information that:

(i) is in or enters into the public domain without breach of this Agreement;

(ii) a Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or

(iii) a Party knew prior to receiving such information from the other Party or develops independently.

Mutual Indemnity

Both Parties agree to indemnify, defend, and hold harmless each other from and against, any and all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, damages, and expenses (including reasonable legal fees and expenses) of whatsoever kind or nature arising out of or related to any actions taken subject to this Agreement.

Mutual Limitation on Liability

EACH PARTY REPRESENTS AND WARRANTS IT HAS FULL RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO GRANT THE RIGHTS AND RESPONSIBILITIES CONTAINED HEREIN. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ANY DAMAGES ARISING BY VIRTUE OF AN EVENT BEYOND THE PARTY’S CONTROL OR ANY DISRUPTION OF DELIVERY OF SERVICES BEYOND THE PARTY’S CONTROL. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY, REGARDLESS OF THE CAUSE OR ACTION, EXCEED THE AMOUNT PAID BY CALL BUYER TO CALL SELLER IN THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

Waiver

The failure of a Party to exercise or enforce any right or provision hereunder shall not constitute a waiver of rights or provisions.

Relationship of the Parties

The relationship of the Parties established by this Agreement is solely 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, affiliates, and representatives.

Assignment

Neither party may assign, sublicense, or otherwise transfer their rights and/or obligations under the Agreement, or any portion thereof, to any person or entity by operation of law, by merger, or otherwise, without the prior written authorization of the other Party.

Force Majeure

Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed, restricted, or prevented by reason of any act of God, fire, natural disaster, act of government, strikes or labor disputes, inability to provide raw materials, power or supplies, or any other act or condition beyond the reasonable control of the party in question; provided, that the affected party uses reasonable commercial efforts to avoid such event to the extent reasonably practicable and to resume performance following such event as soon as reasonably practicable.

Severability

If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.

Complaints, Disputes, Notice

The Parties will cooperate with each other to resolve complaints received by the other as a result of this Agreement. The Parties will notify each other in writing or via email within 24 hours of receiving any written or verbal inquiry or notice of an investigation by any federal or state governmental agency or any consumer complaint organization relating to this Agreement. The Parties will notify each other in writing or via email within 24 hours of being informed of any lawsuit or administrative action brought by any person or governmental agency relating to activities under this Agreement.

Attorney’s Fees

In the event of a breach of this Agreement, the prevailing Party shall be entitled to recover from the unsuccessful party all costs, expenses, and actual fees (including, but not limited to, reasonable, out-of-pocket attorney’s fees) relating to or arising out of:

(a) such proceeding, whether or not such proceeding proceeds to judgment, and

(b) any post-judgment or post-award proceeding, including without limitation one to enforce any judgment or award resulting from any such proceeding. Any such judgment or award shall contain a specific provision for the recovery of all such fees, costs, and expenses and a specific provision for the recovery of all such subsequently Incurred costs

, expenses, and actual, out-of-pocket attorney’s fees.

Governing Law

This Agreement is governed by and enforced in accordance with the laws of the State of Texas, except for conflict of laws principles. All claims arising out of or relating to this Agreement shall be litigated exclusively in the federal or state courts of Travis County, Texas, and Call Buyer and Call Seller consent to personal jurisdiction in those courts and waive any objection on the grounds of venue, forum non-conveniens, or any similar grounds with respect to any such claim.

Miscellaneous

Each Party agrees to not use the name, graphical images, or logos of the other Party or any of its websites in any press release or any sales or marketing efforts without the prior written consent of the other Party.

Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement is non-exclusive. No oral promises or representations in connection herewith shall be binding upon either party, nor shall this Agreement be modified in any manner except by amendment in writing executed by the parties hereto.

IN WITNESS WHEREOF, the parties hereto execute this Agreement effective the date first above written.

Exhibit A – Quality Control Guidelines

These Quality Control Guidelines are designed to help ensure quality and must be fully complied with in order for an activity to be deemed a Billable Call:

For All Billable Call Generation Activity:

Calls may not come from computer-generated sources, such as robots, spiders, computer scripts, or from other automated, artificial, or fraudulent methods including, without limitation, the use of any spyware, adware, device, program, iFrames, redirects, or other automated, artificial, or fraudulent methods designed to appear like an individual, live person.
Calls may not come from Google Business Profiles, Local Services, or any Google services. Calls may not come from sources that violate third-party terms of services, including but not limited to Google, Yelp, Facebook. Calls cannot come from fraudulent sources.
Calls may not be processed or entered by anyone other than the consumer named in the subject lead. Call Seller’s Call Center operations are exempt from this requirement so long as the applicable Call Center operator(s) speak(s) directly with the consumer named in the subject Billable Call lead.
Calls may not come from persons that did not express an interest in receiving information associated with the applicable product and/or service being marketed, or from persons misled or deceived into calling or completing a web lead form.
Calls may not contain false, incomplete, or inaccurate information or be obtained using misleading or confusing language that is used to encourage persons to submit their contact information.
Unless prior written authorization is provided by Call Buyer, Calls may not be incentivized (including, without limitation, generated by offering incentives, payments, rebates, sweepstakes entries, prizes, or other things of value intended to increase conversion rates).
Calls may not be generated in connection with any Call Seller websites or graphic arts, assets, or other similar materials (collectively “Creative”) that are oriented toward, show, or promote: a) the use of alcohol, tobacco, or illegal substances, nudity, sexually explicit material, pornography, profanity, adult-oriented content, expletives, or inappropriate language; b) illegal or unethical activity, deceptive acts, racism, hate, material that promotes violence, “spam,” mail fraud, gambling, pyramid schemes, investment opportunities, or illegal advice; c) libelous, defamatory, infringing, false, or misleading content, or other content that is contrary to public policy; d) content that may expose Buyer and/or its clients to negative publicity; e) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; f) content that violates the rights of others, such as intellectual property or privacy rights; g) activities generally understood as Internet abuse including, but not limited to, the sending of unsolicited bulk electronic mail; and/or h) content that is otherwise offensive or inappropriate in Buyer’s sole discretion.
Calls may not be generated through the use of Creative or by purchasing keywords from search engine service providers (“Paid Search Networks”) that are misleading, untrue, and/or that infringe upon any trademark, copyright, or other third-party intellectual property rights. This prohibition includes, but is not limited to, Paid Search Networks or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark, and/or brand name of any third party including, without limitation, any client, or any derivative or misspelling of any such trademark, service mark, or brand name. Without limiting the foregoing, Call Seller may not violate the rules, requirements, or regulations of any Paid Search Network or Paid Inclusion Network, and Call Seller shall fully indemnify and hold harmless Call Buyer from and against any and all liability arising in connection with such a violation.
Calls may not be misclassified (for example, a plumbing call is not a Billable Call if the consumer expressed an interest in a roofing product and/or any service other than a plumbing product and/or service).
The consumer must be eighteen (18) years of age or older.
Calls obtained through the use of Craigslist or other similar online classified ad websites may not be misleading in any way including, without limitation, any strategies that redirect persons to landing pages for purposes not clearly referenced or fully explained in the Creative.
Call methods must comply with the terms of use and privacy policy of the website or internet service provider utilized (e.g., Google, Bing, Yahoo!, Facebook, etc.).
Calls may not be obtained using any fraudulent or illegal practices.
Without limiting any of the marketing restrictions contained herein, without receiving Call Buyer’s prior written approval in each instance, Call Seller may not: a) include or promote any Creative by and through any blogs, news articles, or other social media outlets; or b) use any endorsements or testimonials in connection with marketing the Creative. Where Call Seller is authorized by Call Buyer, in writing, to engage in the marketing activities described in this Section 14, Call Seller must fully comply with the Federal Trade Commission Guidelines Concerning the Use of Endorsements and Testimonials.
Unless otherwise agreed to by Call Buyer and memorialized in the Agreement, Call Seller may not engage in any marketing and/or Call generation via SMS, Smart Messaging, EMS, MMS, or any other type of text messaging service or protocol.
Call Seller may not: a) take control of an end-user’s computer by delivering advertisements that the end-user cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; b) install or execute on another’s computer one or more additional software program(s) without consent of the end-user (in addition, Call Seller must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the end-user); and/or c) distribute spyware or other similar harmful software.

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Exhibit B – Data Provider Privacy

This Data Provider Privacy Exhibit (“Privacy Exhibit”) shall be fully incorporated into the Agreement. To the extent of any inconsistency or conflict between this Privacy Exhibit and the Agreement, the terms of this Privacy Exhibit shall govern in all respects. Capitalized terms used but not defined herein shall have the meaning set forth in the Agreement.

Definitions: a. The terms “Business,” “Business Purpose,” and “Consumer” shall have the meanings ascribed to them in the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”). b. “Applicable Privacy Laws” means all statutes, regulations, regulatory guidelines, and judicial or administrative holdings or interpretations related to consumer privacy including, but not limited to, the CCPA, as same are applicable to Seller’s access to or Processing of Personal Information. c. “Personal Information” means, in addition to any definition under Applicable Privacy Laws, any personally identifiable information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to any individual or household including, without limitation, the Leads. d. “Process” or “Processing” means any operation or set of operations which is/are performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, sale, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
Covered Business: Seller acknowledges and agrees that it is a “Business” as defined under the CCPA and, as a result, the collection and Processing of any California Consumer Personal Information shall be governed by the CCPA (as well as other Applicable Privacy Laws). Seller represents and warrants that its collection and Processing of Personal Information shall comply with all Applicable Privacy Laws including, but not limited to, the CCPA.
Call Seller Disclosures: a. Privacy Policy/Privacy Notice: Call Seller must include a Privacy Policy (as well as any other privacy notice and/or language above the “submit” button on the web page(s) where lead data is collected that is required by Applicable Privacy Laws (collectively, the “Call Seller Privacy Disclosures”)) on any and all websites (collectively, “Call Seller Websites”) and/or forms (collectively,

“Call Seller Forms”) used to capture leads that are utilized by Call Seller and/or any sub-marketer used by Call Seller in connection therewith. The Call Seller Privacy Disclosures must be clearly and conspicuously linked to from the Call Seller Websites and Call Seller Forms. The Call Seller Privacy Disclosures shall be designed and presented in a way that is easy to read and understandable to an average consumer. The Call Seller Privacy Disclosures shall: i. Use plain, straightforward language and avoid technical or legal jargon. ii. Use a format that makes the policy readable, including on smaller screens, if applicable. iii. Include the following disclosures: 1. A description of consumers’ rights under the CCPA, with instructions for submitting verifiable requests, and the process that Seller will use to verify such requests; 2. Categories of Personal Information collected; 3. Categories of sources from which Personal Information is collected; 4. The Business Purpose for such collection; 5. Whether or not Call Seller has sold any Personal Information in the preceding twelve (12) months, and, if so, the category of parties to whom it is being sold and the business or commercial purpose for the sale; 6. Whether or not Call Seller has disclosed any Personal Information to Service Providers or third parties in the preceding twelve (12) months, and, if so, the categories of parties to whom it is being disclosed, and the business or commercial purpose for the disclosure; 7. Minimally, a toll-free number and online request form or portal for consumers to submit any requests to know and/or delete; 8. Call Seller’s contact information for questions or concerns regarding its policies and practices; and 9. The date that the policy was last updated. iv. Otherwise comply with Applicable Privacy Laws, including the CCPA and any final regulations published by the California Attorney General. b. Right to Opt-Out: Seller shall also provide a clear and conspicuous link on the homepage of each Seller Website that reads, either: “Do Not Sell My Personal Information” or “Do Not Sell My Info.” That link must allow users to opt-out of the sale of their Personal Information. Seller shall provide Consumers with notice of their right to opt-out of the sale of their information. The notice of the right to opt-out shall be designed and presented to the consumer in a way that is easy to read and understandable to an average consumer and shall: i. Describe the consumer’s right to opt-out of the sale of her/his Personal Information by the business; ii. Provide a webform by which the consumer can submit her/his request to opt-out online; iii. Use plain, straightforward language and avoid technical or legal jargon; and iv. Otherwise comply with Applicable Privacy Laws, including the CCPA and any final regulations published by the California Attorney General.

Consumer Consent to Re-sell Personal Information: Call Seller represents and warrants that the Call Seller Privacy Disclosures (including language above the “submit” button on the web page(s) where lead data is collected) permit third parties, such as Call Buyer, to re-sell the Personal Information/lead data collected from the subject consumers without obtaining any subsequent consent from those consumers.
Call Seller Consumer Requests: Call Seller shall immediately notify Call Buyer, in writing, of any requests received from any individual whose information was provided to Call Buyer in connection with the Agreement, including any requests to: a. disclose the categories or specific pieces of Personal Information collected, categories of sources from which the Personal Information was collected, categories of Personal Information that the business sold and/or the Business Purpose for the collection or sale of Personal Information; b. access any Personal Information collected; and/or c. delete any Personal Information collected. Call Seller shall timely respond to any and all such requests, as required by Applicable Privacy Laws, and provide Call Buyer with a copy of each such response.
Assistance with Call Buyer Consumer Requests: Call Seller shall provide all assistance as is reasonably requested by Call Buyer to meet its obligations under any Applicable Privacy Laws including, but not limited to, its obligations to respond to individuals’ requests to exercise their rights, by: a. providing the requested Personal Information in a portable and, to the extent technically feasible, readily usable format that allows the individuals to transmit the information to another entity without hindrance; and b. deleting all instances of Personal Information from Call Seller’s records and systems as directed by Call Buyer. Such assistance shall be promptly provided within the deadline established by Call Buyer and shall be accompanied by a signed certificate attesting to Call Seller’s compliance with this Exhibit B Section 6.
Sub-Marketers: In connection with any sub-marketers used by Call Seller in connection with the Agreement, Call Seller shall: a. enter into a written agreement with each such sub-marketer that contains obligations that are equivalent to the terms in this Data Provider Privacy Exhibit; b. ensure that all sub-marketers abide by the terms and conditions of this Data Provider Privacy Exhibit; and c. ensure that such sub-marketers do not subcontract any obligation to generate Billable Calls for Call Buyer or purchase the same from any third parties.
Indemnification: In addition to the indemnification obligations under the Agreement, Call Seller shall indemnify, defend, and hold harmless Call Buyer and its directors, officers, employees, shareholders, agents, successors, and permitted assigns from and against any and all actual or threatened suits, claims, actions, causes of actions, judgments, damages, liabilities, losses, costs, and expenses (including, without limitation, court costs, litigation expenses, and reasonable attorneys’ fees) arising out of or related to the breach of this Data Provider Privacy Exhibit or any Applicable Privacy Law by Call Seller and/or any sub-marketer. Damages for a breach of this Data Provider Privacy Exhibit and Call Seller’s indemnification obligations set forth herein shall not be subject to any limitation of liability provision in the Agreement.

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