Lead Purchase Agreement - Publisher (Principal)

LEAD PURCHASE "PUBLISHER" AGREEMENT

This Lead Purchase "Publisher" Agreement (the “Agreement”) is entered into the day as reflected on Schedule A (Digital Agreement) (the "Effective Date") by and between:

Party A (the “Vendor”) with its address as reflected on Schedule A

-and-

Party A Principal (the “Vendor Principal” and together with the Vendor, the “Vendor Parties”)

-and-

LendingArch Financial Inc. (“LAF” and together with the Vendor Parties, the “Parties”) with its address at 4500 Bankers Hall East, 855 2 Street SW, Calgary, AB T2P 4K7

 

WHEREAS LAF operates an online platform where borrowers can apply for loans using an online application and is in the business of generating, acquiring and selling leads (each, a "Lead") containing information relating to applicants who are looking for a loan or service within various categories, including but not limited to the desire to: acquire or finance an automobile or mortgage services; obtain insurance quotes and policies; and obtain debt relief services or personal loans (the "LAF Verticals");

WHEREAS the Vendor possesses or will be receiving or facilitating the collection of certain information relating to Applicants (as hereinafter defined), including but not limited to their names, addresses, personal information and credit histories;

AND WHEREAS LAF wishes to retain the services of the Vendor Parties as a publisher and supplier of 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:

1. Definitions

1. “Applicant” means any person who has provided their information to the Vendor in connection with seeking to acquire or finance an automobile and who is the subject of a Lead;

2. “Bad Leads” means any Lead which: (i) contains incorrect, prank or erroneous information; (ii) contains reference to a disconnected or inactive phone number; (iii) pertains to an applicant having gross income of less than $1,800 per month; (iv) is unemployed or cannot prove income; (v) is under the legal driving age: (vi) does not possess a valid driver's license; (vii) does not meet the terms or requirements of any Lead Order; or (viii) meets the additional criteria for a Bad Lead contained at Schedule "B" hereto;

3. “Business” means the sale of Leads relating to the LAF Verticals;

4. “Confidential Information” means information that is, or would reasonably be expected to be, treated as confidential and proprietary by LAF or the Vendor Parties, as applicable, including, without limitation:

   1. an Applicant’s or other individual’s personal information, information pertaining to third parties, affiliates, partnerships and individuals involved, directly or indirectly, in the parties’ business and the pricing under this Agreement;

   2. the existence of any relationship between the parties or the terms or existence of this Agreement;

   3. LAF's borrower flow process or materials, terms and conditions, privacy policy, list of service providers, customers or suppliers, questions and answers with respect to any of LAF's documentations or forms, LAF's website or advertising content, LAF's disclaimers or the use or knowledge of LAF's colours, images, fonts or stylization;

in each case whether spoken, written, printed, electronic or in any other form or medium and regardless of whether delivered or accessed by the Vendor Parties prior to or following the Effective Date or the date of this Agreement;

1. “Privacy and Data Protection Requirements” means all applicable federal and provincial 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;

2. “Leads” has the meaning given thereto in the Recitals above;

3. "Term" means the term of this Agreement in accordance with Section 15.

2. Purchase and Sale of Leads

1. During the Agreement’s Term, Vendor agrees to sell Leads to LAF, and LAF agrees to buy Leads from Vendor.

2. The Vendor shall ensure that the Vendor Principal is available to perform the Services for and on behalf of the Vendor and shall ensure that all duties, responsibilities and Services to be performed by the Vendor and the Vendor Principal hereunder are performed in a professional and business-like manner.

3. Lead Order

1. LAF shall advise Vendor from time to time of the number of Leads it desires Vendor to send to LAF in the ensuing thirty (30) days (such notice being a “Lead Order”), which Lead Order shall specify the number of Leads LAF desires to purchase and the geographic area (which may specify a city, geographic radius surrounding a particular city or province) to which such Leads are to relate, if any. Subsequent to the delivery of any Lead Order, LAF shall have the ability at its discretion, and at any time, to amend the Lead Order to increase or decrease the number of Leads indicated in the Lead Order or modify the geographic area in which such Leads are to apply.

2. Vendor shall be obligated to use its best efforts to provide the number of Leads specified in the Lead Order and in the requested geographic area and any amendment to such Lead Order. In the event that LAF amends a Lead Order to decrease the number of Leads desired for purchase LAF shall not be obligated to pay for any Leads deducted from the original Lead Order, to the extent such Leads have not been previously delivered to LAF prior to the date on which LAF delivered such amended Lead Order to the Vendor.

3. All Leads provided to LAF shall: (i) be provided immediately in real time (and without delay or modification) following the generation of the Lead and receipt of Applicant information by the Vendor or through LAF's own online form; (ii) be original leads which have not been previously sold to any other party or otherwise recycled; (iii) not have been obtained by the Vendor Parties through the use of sweepstakes, inducement or "clickbait" type marketing; and (iv) have been obtained in compliance with any applicable advertising policies of LAF;

4. In the event that Vendor has, due to inadvertence or for any other reason, provided LAF with a number of Leads which is in excess of the Lead Order (the “Excess Leads”), LAF shall be entitled to own and make use of such Excess Leads but shall not be required to pay the Vendor any amount in excess of that provided for in the Lead Order.

5. Within two business days of the end of each week during the Term the Vendor shall deliver to LAF written notice and confirmation of each Lead delivered during the preceding week along with sufficient additional details to allow LAF to reconcile delivered Leads against the Lead Order.

6. Vendor must submit all proposed advertising to LAF at the start of every month, or upon request by LAF for LAF approval.

7. All leads resulting in advertising must have a Sub-ID attached to it so that LAF can trace such applicant back to the original advertising placed by the Vendor Parties.

4. Bad Leads

1. LAF shall review and reconcile all Leads provided by the Vendor within: (i) one week following delivery of any Leads delivered pursuant to a weekly order; and (ii) within one month following delivery of any Leads delivered pursuant to a monthly order. As part of such review and reconciliation LAF shall identify any Leads which have been previously delivered which are Bad Leads. Any failure for LAF to reconcile within the stated timeline(s) does not constitute a breach of this clause. The procedures and requirements with respect to reconciliation of Leads may vary per country and / or vertical, and any such procedures or requirements will be appended to this Agreement on a case by case basis by amendment and inclusion in Schedule C, or as agreed upon in writing between the parties.

2. In the event that the Vendor has delivered any Bad Leads to LAF, LAF shall not be required to pay for any such Bad Leads and, upon notice from LAF of such Bad Lead or deficiency, the Vendor shall, at the election of LAF in its full discretion, either: (i) immediately replace such Bad Leads with alternate Leads that meet the required terms or specifications; or (ii) immediately refund to LAF the full amount of any consideration previously paid to the Vendor in respect of such Bad Lead.

5. Use of Leads

1. The Vendor Parties acknowledge and agree that LAF may, without seeking the consent of the Vendor Parties, use the Leads purchased from Vendor for the purpose of LAF’s Business or for any other purpose LAF deems suitable, including sharing with third parties, distributing, licensing, selling, reselling or otherwise disclosing any of the Leads, the information included in the Leads or information otherwise related to the Leads.

2. The Vendor Parties agree that they shall not market their own products and services to Leads sold to LAF pursuant to a Lead Order or to any Excess Leads provided to LAF. The Vendor Parties further agree that they shall not be entitled to further resell, recycle, sell or market any product for sale to any Lead or otherwise utilize any such Leads which have been previously sold to LAF.

3. Vendor furthermore agrees and explicitly acknowledges that at the sole discretion of LAF, LAF has the right to bring on additional publishers, sub-publishers, affiliates, sub-affiliates, traffic managers and sub-traffic managers, internal or external, if and when LAF decides to do so. Vendor acknowledges and agrees that all such decisions relating to the structure and operations of LAF’s traffic department or division, will be at the sole and exclusive discretion of LAF.

6. Consideration

For each Lead sent by Vendor to LAF under a Lead Order, LAF shall compensate Vendor at the rate per Lead indicated in Schedule A. The parties shall periodically amend Schedule "A" by mutual agreement to include pricing for additional jurisdictions in advance of the Vendor providing any Leads from such jurisdiction to LAF.

7. Payment Terms

In consideration for the services rendered by the Vendor Parties hereunder, LAF agrees to pay Vendor the compensation described in Section 6 via EFT, Wire, Direct Deposit or Credit Card within thirty (30) days of the date on which LAF receives an invoice from the Vendor in respect of such Leads. Alternatively, as may be agreed between the Vendor Parties and LAF, the Vendor may establish an online portal account (a “Portal Account”) for the benefit of LAF which LAF shall be required to fund, in advance, in respect of any Leads reflected in a Lead Order. In the event such a Portal Account is established the Vendor shall only be obligated to deliver Leads to LAF to the extent that sufficient funds have been deposited in the Portal Account to pay for such Leads. Vendor shall deliver all Leads contemplated by any Lead Order to LAF within thirty (30) days of the date on which the Lead Order is made.

8. Information Captured by Vendor

The Applicant information that will be provided to LAF will include, at a minimum, but is not limited to the Applicant's: preferred vehicle type, monthly budget, name, email, phone, address, employment status, employer name, job title, length of employment, stated income, date of birth, ownership or rental status of home, length of time at residence and amount of monthly payment for rent or mortgage, stated credit score as well as written confirmation of the Applicant's consent for the credit check undertaken by Vendor and/or by LAF. In the case of additional verticals, including but not limited to mortgage, insurance, debt relief or personal loan leads, the information captured by Vendor may vary and must be agreed upon by LAF in advance.

9. Terms and Conditions for Information Capture

Vendor shall use the same or substantially similar terms and conditions as per LAF's terms and conditions and as are set out in the LAF's privacy policies for obtaining and processing personal information. The Vendor shall additionally ensure that any applicable terms and conditions are in compliance with the requirements of the Telephone Consumer Protection Act (or any similar applicable legislation) to obtain and process Applicant information. LAF shall be entitled to review Vendor's terms and conditions and privacy policies to ensure Vendor's terms and conditions and privacy policies meet this requirement and all Privacy and Data Protection Requirements. The Vendor Parties shall take all steps reasonably necessary to aid with LAF's review of Vendor's terms and conditions and shall make all such changes or amendments as are reasonably requested to such terms, conditions and privacy policies as LAF may request.

10. LAF Access to Applicant

The Vendor Parties agree to use their best efforts to assist LAF in obtaining direct access to Applicants for the purpose of obtaining necessary documentation and verifying information necessary to undertake LAF’s Business.

11. Ownership of Applicant Data

1. Upon receipt of the Leads contained in a Lead Order or any Excess Leads or replacement Leads, LAF shall have sole and exclusive ownership of said Leads and all rights associated therewith (including, without limitation, all Applicant information contained therein as well as all related information and all intellectual property rights therein).

2. Once LAF receives any Leads from Vendor, the Vendor Parties shall retain no rights whatsoever to the Leads, the Applicant information contained in the Leads, nor any rights to any related information and intellectual property rights therein.

12. Vendor Advertising and Grant of License

1. The Vendor Parties acquire Leads through a variety of advertising methods and promotional literature. Prior to submitting any Lead Order to Vendor, LAF shall be entitled to, and shall, review the Vendor Parties’ advertising methods and promotional literature for compliance with all applicable rules and regulations, including but not limited to Privacy and Data Protection Requirements. The Vendor Parties shall take all reasonable steps to facilitate LAF’s review.

2. The Vendor Parties shall obtain LAF’s prior written consent for the use of any advertising or promotional literature used to obtain Leads which are to be sold to LAF during the Agreement’s term. The Vendor Parties shall take all reasonable steps to amend any such advertising or promotional literature in any manner reasonably requested by LAF.

3. LAF hereby grants the Vendor a limited, non-exclusive, revocable, license to use the name “LendingArch” and LAF’s registered trademarks regarding its name and logo, for the sole purpose of preparing and publishing marketing materials as otherwise permitted in accordance with this Agreement.

4. In addition to their other obligations hereunder, the Vendor Parties shall:

   1. not sell or sublicense any of the intellectual property of LAF for which they have been provided a license hereunder;

   2. only use the intellectual property for which they have been provided a license for the purposes of advertising and marketing and only in accordance with the terms and conditions set out herein;

   3. immediately cease using any and all intellectual property of LAF upon LAF’s request to do so.

13. Independent Parties

1. The Vendor Parties represents to LAF that the Vendor is in business for itself and is an independent contractor for the purposes of the Income Tax Act (Canada). Nothing in this Agreement shall be regarded or construed as creating any relationship, whether employer/employee, joint venture, agency, association, partnership or otherwise, between the Vendor Parties and LAF, other than an independent contractor relationship as set out in this Agreement. Except as provided in this Agreement, the Vendor Parties shall not be entitled to any benefits or rights, including reasonable notice, to which employees are generally entitled under the common law.

2. Except where expressly authorized in writing by LAF, the Vendor Parties shall not have the authority to make any statements, representations or commitments of any kind or take any action that shall be binding on LAF.

3. The Vendor shall determine the manner or means by which it performs the Services for LAF and The Vendor Parties shall furnish, at their own expense the equipment, supplies, tools and other materials used to perform the Services.

4. The Vendor Parties shall be solely responsible for the payment of any and all applicable taxes, assessments and deductions in respect of fees, Commissions or other amounts paid to the Vendor Parties by LAF under this Agreement, together with all appropriate and applicable remittances, withholdings and deductions required, including, without limitation, income tax, unemployment insurance, pension plan contributions, workers' compensation deductions and all other remittances, withholdings and deductions required by law.

14. 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 Parties submit exclusively to the jurisdiction of the courts sitting in Calgary, Alberta, for the adjudication of any controversy or claim, at law or in equity, pertaining to this Agreement or related to any of the transactions contemplated hereunder.

15. Term

The initial term of this Agreement shall commence on the date first written above and will continue on a month to month basis. After the end of the initial month, this Agreement shall automatically renew for successive monthly terms unless previously terminated by either party at any time in accordance with Section 16.

16. Termination

1. This Agreement may be terminated at any time on written notice from LAF or the Vendor.

2. Subject to Section 16(c), in the event of termination by LAF as a consequence of either: (i) the provided Leads not meeting LAF’s specified requirements; or (ii) any breach of this Agreement by the Vendor Parties; this Agreement shall be immediately terminated and LAF shall not be required to pay for any such previously delivered Leads for which payment has not yet been delivered. Subject to Section 16 (c), in the event of termination for any other reason, LAF shall pay any outstanding balances owed to Vendor, including any balance owing for outstanding Lead Orders (other than in respect of Bad Leads), within thirty (30) days of termination but no additional Leads shall be delivered following such termination date and LAF shall not be required to pay for any such Leads delivered subsequent to the termination date.

3. In the event of any termination of this Agreement, Sections 19, 20 and 21 shall survive such termination and shall continue in full force and effect, for a period of 24 months (with respect to Sections 19 and 21), and for a period of 18 months (with respect to Section 20), following such termination date.

17. Representations and Warranties of LAF

LAF represents, warrants and confirms that:

1. it is duly registered and/or has all required licenses or permits required to conduct its business and perform all duties under this Agreement in compliance with all laws, regulations and rules applicable to it and will perform such duties in accordance with the standards described herein.

2. it is a valid and subsisting corporation under the laws of the jurisdiction of its incorporation with full power and authority to enter into this Agreement and to carry out its obligations hereunder.

3. this Agreement constitutes a legal, valid, binding and enforceable obligation of LAF subject to:

   1. 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

   2. general principles of equity, including the fact that equitable remedies, such as specific performance and injunctions, may only be awarded at the discretion of the court.

4. 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 LAF and LAF has read this Agreement and understands the contents hereof and has not relied upon any advice from the Vendor Parties.

5. it will not make any representations or warranties, or provide any information about Vendor or its products, services or affairs, as applicable, other than what is explicitly conveyed and agreed to by the Vendor.

6. there are no suits, actions or proceedings against or affecting LAF, or any of its directors, officers, agents or employees, before any court, governmental body (including any regulatory authority) or arbitrator (nor to LAF’s knowledge, any such actions pending or threatened in writing) which are likely to materially adversely affect LAF’s ability to perform its obligations hereunder and LAF is not in default with respect to any order of any court, governmental body (including any regulatory authority) or arbitrator which materially adversely affects LAF’s ability to perform its obligations hereunder.

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. LAF will advise Vendor immediately if the foregoing changes.

18. Representations and Warranties of the Vendor Parties

The Vendor Parties represent, warrant and confirm that:

1. they are duly registered and/or have all required licenses or permits required to conduct their business and perform all duties under this Agreement and conduct their business in full compliance with all laws, regulations and rules applicable to them and will perform such duties in accordance with the standards described herein.

2. the Vendor, and, if applicable, the Vendor Principal, is a valid and subsisting corporation under the laws of the jurisdiction of its incorporation with full power and authority to enter into this Agreement and to carry out its obligations hereunder.

3. the Vendor Principal has full legal capacity, power and authority to execute and deliver this Agreement and to perform its obligations hereunder.

4. this Agreement constitutes a legal, valid, binding and enforceable obligation of the Vendor Parties subject to:

   1. 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

   2. 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.

5. the execution and delivery of this Agreement, the performance of its obligations hereunder and the completion of the transactions contemplated herein will not result in violation of any law, regulation or rule by the Vendor Parties and the Vendor Parties have read this Agreement and understand the contents hereof and have not relied upon any advice from LAF.

6. there are no suits, actions or proceedings against or affecting the Vendor Parties, or any of their directors, officers, agents or employees, before any court, governmental body (including any regulatory authority) or arbitrator (nor to the Vendor Parties’ knowledge, any such actions pending or threatened in writing) which are likely to materially adversely affect the Vendor Parties’ ability to perform their obligations hereunder and the Vendor Parties are not in default with respect to any order of any court, governmental body (including any regulatory authority) or arbitrator which materially adversely affects the Vendor Parties’ ability to perform their obligations hereunder.

7. they have obtained all Leads to be provided to LAF in compliance with, are currently in compliance with and will continue, throughout the term of this Agreement, to remain in compliance with:

   1. all Privacy and Data Protection Requirements; and

   2. all applicable provincial and federal consumer protection legislation, including but not limited to the Consumer Protection Act (Alberta) and the Competition Act (Canada).

8. they have implemented adequate and reasonable cyber security, pivacy, consumer protection and data protection and handling procedures and protections and that they either have or, will if reasonably requested by LAF, obtain adequate insurance to protect and insure against data, privacy, consumer protection or cyber security breaches.

9. they have the full legal right to, and ownership of, all data, information and materials provided to LAF hereunder and have obtained valid consent from each such Applicant to a credit check along with all required consents from Applicants to the sale and use of any Lead related to such Applicant, including with respect to any resale of such Lead by LAF.

10. they shall honour the terms of all intellectual property and software licensing arrangements between LAF and the parties with whom LAF has licensed such intellectual property or software and the Vendor Parties acknowledge that other than as expressly set out herein the Vendor Parties shall have no rights or license to any intellectual property or software of LAF or of the parties whom LAF has licensed intellectual property or software from.

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. The Vendor Parties shall advise LAF immediately if the foregoing changes. Notwithstanding anything in this Agreement to the contrary, the Vendor Parties’ obligations contained in this Section 18 shall survive termination of this Agreement for a period of twenty-four (24) months.

19. Confidential Information

1. The Vendor Parties acknowledge that LAF may directly or indirectly disclose Confidential Information to the Vendor Parties, their agents, employees or representatives in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of LAF, and the Vendor Parties, their agents, employees or representatives that receive 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 own Confidential Information, but in all cases not less than a reasonable degree of care.

2. The Recipient shall not, without the prior written authorization of the other party, either during the term of this Agreement or at any time after the termination of this Agreement:

   1. use any Confidential Information for the benefit or purposes of the Recipient or any other person, company or organization whatsoever other than as otherwise permitted or expressly contemplated by this Agreement; or

   2. disclose any Confidential Information to any person, company or other organization whatsoever, other than to the Recipient’s personnel who have a need to know such Confidential Information, and provided that Recipient shall require each of such personnel to execute written agreements, in a form satisfactory to the other party, securing for the other party, the rights provided for in this Section 19 prior to and as a condition of such personnel providing or performing any services for the Recipient in relation to the Leads, and shall provide a copy of such agreement to the other party upon request of the disclosing party and both the Recipient and its employees, agents and personnel will be fully liable and responsible for any breach of such written agreement by such persons.

3. The Recipient shall, immediately upon request or upon termination of this Agreement, return or destroy all Confidential Information of the other Party and all copies thereof.

4. Notwithstanding anything in this Agreement to the contrary, the Parties’ rights and obligations set out in this Section 19 shall survive termination of this Agreement for a period of twenty-four (24) months from the date of such termination.

20. Non-Solicitation and Non-Disparagement

1. During the term of this Agreement and for a period of 18 months following the expiration or termination of this Agreement for any reason, the Vendor Parties shall not:

   1. 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;

   2. 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; or

   3. attempt to circumvent the terms or intent of this Agreement, either directly or indirectly, and understand and agree that that any action of circumvention or unauthorized disclosure to any third parties shall be considered a breach of this Agreement entitling LAF to exercise the remedies available to it hereunder. Such remedies shall be in addition to any injunctive or other equitable relief, or remedy at law, that may be sought by LAF to prevent or remedy further circumvention or other terms and conditions of this Agreement.

2. Unless otherwise required by applicable law, the Vendor Parties shall not, on their own behalf or on behalf of or in connection with any other person, in any capacity whatsoever, make or publish written or oral statements or remarks (including the repetition or distribution of derogatory 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.

21. Indemnification

1. LAF shall indemnify and hold harmless Vendor, 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 arising directly or indirectly from material breach of this Agreement by LAF, except when and to the extent such claims, actions, suits, proceedings, judgments, damages, liabilities, costs and expenses are caused by the negligent acts or omissions or willful misconduct of the Vendor Parties, their personnel and affiliates;

2. The Vendor Parties 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 arising directly or indirectly from breach of this Agreement by the Vendor Parties or grossly negligent acts or omissions, or willful misconduct of the Vendor Parties or their personnel and affiliates.