This Master Sales Agreement (the "Agreement") is entered by and between HQ4ADS, Inc.. ("Company"), and ("Client"), each a "Party" to and collectively the "Parties" to the Agreement. In accordance with this Agreement, Company shall provide Client with the goods and services in connection with the advertisement and marketing of Client's business in the general marketplace as outlined in one or more purchase orders ("Purchase Order") which are hereby incorporated by reference. This Agreement provides the general terms and conditions which govern the business relationship between the Parties with respect to such Purchase Orders.
The following defined terms have special meaning under this Agreement:
(a) An "Affiliate" is any person or entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the person or business entity specified. A Merchant is not included within the definition of an Affiliate.
(b) "Customer Lead" or "Lead" means all information pertaining to a member of the general public provided to Client under this Agreement for Client's use in connection with the advertising, marketing and/or sale of Client's goods and services. A Customer Lead may include, but is not limited to: a person's name, address, telephone number, email, credit history, socio‐economic information, gender, age, race, banking information, credit history, purchase history, personal preferences, information obtained from social media, and assets/liability information about that person.
(c) "Confidential Information" means non‐public information that either Party to this agreement designates orally or in writing as being confidential or which, under the circumstances surrounding disclosure, ought to reasonably be treated as confidential. Confidential Information includes, but is not limited to: released or unreleased products or services, the identity of Company's Merchants, marketing promotions, business policies or practices, business strategies, financial information, customer lists, Customer Lead information, trade secrets, inventions, formulas, processes, databases, ideas or other information which, under the circumstances surrounding disclosure, ought to reasonably be treated as confidential. Client acknowledges that Customer Leads, business clients, vendors, original ideas, Merchant identities, consumer data and studies, marketing plans, distribution channels, processes, research, and marketing networks disclosed to Client are the exclusive property of Company, and considered Company's Confidential Information and a protected trade secret. Confidential Information disclosed to one of the Party's subsidiaries or Affiliates and/or agents is covered by this Agreement.
Confidential Information does not include any information that, as demonstrated by reasonable, tangible evidence: (a) was known to the receiving party prior to being disclosed by the disclosing party, or (b) becomes publicly known through no wrongful act of the receiving party, or (c) is approved for release by written authorization of the disclosing party, or (d) is rightfully received from a third party who provided such information without breach of any separate confidentiality obligation and without restriction or subsequent disclosure, or (e) is independently developed without reference to the disclosing party's Confidential Information. In addition, Confidential Information may be disclosed to the extent required by court order or as otherwise required by law, provided that the receiving party notifies the disclosing party promptly upon learning of the possibility of any such requirement, and has given the disclosing party a reasonable opportunity to contest or limit the scope of such required disclosure. This Section shall survive for a period of three (3) years after expiration or termination of this Agreement.
(d) "Losses" means any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, penalties, costs, and expenses, including reasonable attorneys' fees under any theory of legal liability.
(e) A "Marketing Campaign" is any advertising or promotional activity(ies) conducted or coordinated by Company and/or its Affiliates on Client's behalf under this Agreement. A Marketing Campaign may or may not include the use of Customer Leads.
(f) A "Merchant" is an independent third party business with whom Company has entered into a separate agreement for the provision of Customer Lead information and related services to Company for filtering, repackaging and resale to clients.
II. Scope of License Granted For Customer Leads
A. In exchange for the Client's payment of the fees as set forth in the applicable Purchase Order(s), Company hereby agrees to grant Client a limited, non-exclusive, revocable and non‐transferable license to use the Customer Leads provided to Client in furtherance of the Marketing Campaign described the applicable Program Addendum(s). This license includes the following terms and restrictions regarding the use and disclosure of all information contained in a Customer Lead:
1. Client may not resell or disclose Customer Leads outside Client's company or the Marketing Campaign identified in the applicable Purchase Order.
2. Customer Leads may be purchased on an exclusive or non‐exclusive basis. Leads sold on non‐ exclusive basis may be sold to other clients of Company.
3. Use of Customer Leads is limited to solicitation of actual or potential customers of Client for goods or services Client provides to the general public, and that correspond with the goods or services sought by the individual as identified in the Customer Lead.
4. This license is revocable immediately by Company at any time if Client is found to be in material breach of any of the terms of this Agreement.
5. This license shall automatically expire at the conclusion of the specific Marketing Campaign identified in the applicable Purchase Order, or at such other time specified in the applicable Purchase Order.
III. Payment and Refunds
A. Client agrees to pay Company the amounts indicated in the Purchase Order(s) for the Customer Leads, goods and other services being provided to Client. Any additional services provided outside the scope of a Purchase Order at Client's request will be billed at Company's standard rates.
B. Time For Payment. All invoices are due immediately upon being presented. Any sum due to Company that is not paid within fifteen (15) calendar days will thereafter bear interest at a rate of interest equal to ten percent (10%) per annum, but in no event to exceed the maximum rate of interest allowed by applicable law.
C. All requests for refunds must be made in writing by an authorized signatory of the Client, along with the basis of the refund request. Refunds will only be granted in the event that Client in good faith believes that the goods and/or services delivered by Company under an underlying Purchase Order did not conform to the criteria discussed and agreed upon in writing between the Parties. To ensure that goods and/or services conform to the criteria agreed upon between the Parties, Company will run reports on a regular basis to document such conformity. Such reports will be final and binding. Client will have real-time access to such reports via the HQ4Ads client portal. Refunds for any other reason will NOT be honored under any circumstances. Additionally, in the event that the refund is requested after Company has already begun set-up, configuration, and fulfillment of any underlying Purchase Order, refunds will only be issued for the undelivered portion of the Purchase Order, less any set-up costs (including labor hours) incurred by the Company. Valid refund requests will be processed and paid by Company within thirty (30) days of receipt.
IV. Protection of Confidential & Proprietary Information
A. Each Party hereby agrees to:
1. Hold the other Party's Confidential Information in strict confidence;
2. Not disclose such Confidential Information to any third parties except as authorized under this Agreement;
3. Take all reasonable steps to prevent such disclosure, which steps include at least those taken by the recipient Party to protect its own Confidential Information of like kind;
4. Not use any Confidential Information of the other Party for any purpose other than as reasonably required in connection with performance of this Agreement. The Confidential Information of each Party shall be safeguarded by the other to the same extent that it safeguards its own confidential materials or data relating to its own business, but in no event with less than a reasonable standard of care. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement
5. Upon expiration or termination of this Agreement or if so requested by either Party, all Confidential Information belonging to one Party shall be returned to the other Party.
V. Ownership of Intellectual Property
A. Ownership. Each Party shall retain all right, title, and interest in its respective logos, trademarks, copyrighted or copyrightable material, patents, trade secrets and service marks (collectively referred to as "Intellectual Property"). Copyrightable material developed by Company (including material developed using information provided by Client) under this Agreement shall be considered the exclusive property of Company; excepting there from any Confidential Information belonging to Client. Each Party acknowledges and agrees that Intellectual Property made available to the other may not be used in any manner other than provided under this Agreement.
B. Upon the termination or expiration of this agreement, each Party agrees to return the original and all duplicates of all Intellectual Property developed by or belonging to the other Party pursuant to this agreement within thirty (30) days, and shall not retain any copies of said Intellectual Property or otherwise utilize, market or sell said Intellectual Property (or any derivative thereof) to any third person or entity after expiration of this Agreement. Company may, however use Client's name and logo after termination solely to advertise itself as a provider of Customer Leads and marketing services to the public.
VI. Warranties & Regulatory Compliance
A. Company warrants that it will deliver the goods or services identified in the Purchase Order in a professional, timely manner and to promptly respond to Client inquiries within the time limits provided in the Purchase Order.
B. Customer Lead Data. Although Company will utilize commercially reasonable efforts to provide Client with timely, complete, updated and accurate Customer Leads, Client acknowledges that Customer Leads are provided to Client on an AS‐IS basis, with no warranties, express or implied as to the accuracy or content of the Customer Lead. Company does not warrant the merchantability or fitness of Customer Leads for a particular purpose, or otherwise guarantee that the Customer Leads will result in new business for Client.
C. Exchange of DNC Internal Lists: Client shall ensure that it records and transmits to Company the names, addresses, telephone numbers of any potential customer derived from a Customer Lead that requests to be put on Client's internal "Do Not Call" list or otherwise indicates that they not be contacted again by Client. Such information shall be transmitted to company on at least a semi-monthly basis (2x/month).
D. Compliance with Applicable Laws. Client warrants that it is and will act in compliance with all local, state and Federal laws, regulations applicable to the subject matter of this Agreement, and that it maintains the proper licensing and registrations necessary to conduct business in every jurisdiction that it engages in business activities. As a material consideration for Company's willingness to enter into this Agreement, Client makes the following warranties where applicable to Client's business operations:
1. Telephone Based Solicitations. If Client is utilizing telephone based Customer Leads, Client shall immediately identify Client's company name to the consumer, and clearly state the purpose of the call and the goods or services being offered as required by law, including, but not limited to: the Telemarketing and Consumer Fraud and Abuse Prevention Act and the Telemarketing Sales Rule. If Client records the telephone call, Client shall notify the recipient immediately thereafter, and before any personal information is obtained from the recipient of the call, that the call is being recorded and to obtain their permission to do so.\
2. Gramm-Leach Bliley/Privacy Compliance. Client has, and at all times during its performance of this Agreement will maintain, adequate measures to comply with state and Federal privacy laws regulating the access to, use and disclosure of nonpublic personal data or information of actual or potential Customers ("Customer Information") subject to Title V of the Gramm-Leach Bliley Act of 1999 and all state and Federal laws promulgated in accordance with that Act (collectively "GLBA"). Client furthermore warrants to have implemented adequate safeguards appropriate to insure the security and confidentiality of non‐public personal information relating to its customers and potential customers to protect against any anticipated threats or hazards to the security or integrity of this information, and to protect against its unauthorized access or use that could result in substantial harm or inconvenience.
3. Safe Harbor Compliance Warranties. Client, on its own behalf or on behalf of any designee engaged in telephone solicitations, warrants that at all times during the term of this Agreement, it maintains internal compliance policies and procedures that are, at a minimum, sufficient to satisfy the Safe Harbor provisions under the Telephone Sales Rule (16 CFR 310.4) and regulations governing the Telephone Consumer Protection Act (47 CFR 64.1200). Client agrees that it will not market to consumers in violation of Federal or state laws, including, but not limited to: the Federal CAN-SPAM Act, the No Not Call Implementation Act, the Telemarketing and Consumer Fraud and Abuse Protection Act, and the Telephone Consumer Protection Act. Without limiting the foregoing, Client warrants that it will follow all applicable consumer privacy regulations and guidelines at all times.
4. Records Retention. Client will maintain, for a period of at least five (5) years after the date on which they are generated, adequate records relating to any goods or services provided to Client under this Agreement. Company, together with its representatives, will have the right, at its sole expense, upon reasonable notice to Client and during normal business hours, to inspect and copy the Client's data and records solely in connection with Company's investigation of any claim, demand, actual or threatened litigation, or other judicial process directed to Company arising out of this Agreement and the subject matter herein. Client will cooperate to the extent reasonably requested in connection with any such inspection and copying. This provision shall survive the termination or expiration of this Agreement.
A. Although Company may provide guidance and recommendations to Client as part of a Marketing Campaign, ultimately Company has no control over how Customer Leads are used by Client. Because of this, Client agrees to defend, indemnify and hold harmless, Company and its directors, officers, employees, agents, shareholders, partners, members, Affiliates, and other owners, against any and all Losses insofar as such Losses (or actions in respect thereof) arise out of or are based on Client's actual or alleged:
1. Violation of any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third person or entity not a party to this Agreement;
2. Negligence, misconduct, misrepresentation, warranty or breach of this Agreement or a covenant made herein;
3. Violation of any state or Federal laws; and
4. Any administrative proceeding brought by any Federal, state, or local governmental agency against Company arising out of the duties, obligations, acts, omissions or performance of this Agreement by Client.
There shall be no duty indemnify pursuant to this section of the Agreement where such dispute has been incurred directly as a result of Company's gross negligence or willful misconduct.
B. Client agrees to promptly notify the Company of the existence of any actual or alleged Loss, claim, demand, assessment, allegation of negligence or any other matter Client becomes aware of in which the obligation to indemnify hereunder may apply. Company shall also and at all times have the right to fully participate in such defense at its own expense. If within a reasonable time after such notice Client fails or refuses to defend, the Company shall have the right, but not the obligation, to undertake the defense of, and to conclusively compromise or settle the claim or other matter.
VIII. Limitation of Liability and Aged Leads Disclaimer.
A. Company's Liability for Erroneous Lead Information. Company shall not be liable to Client or any other person for lost profits, incidental or consequential damages, or other Losses of any kind and regardless of nature, caused directly or indirectly by errors or omissions in a Customer Lead. Company's only liability and Client's sole remedy for erroneous Customer Lead information shall be to correct such errors when notified of their existence, or in Company's sole discretion, provide a replacement Customer Lead.
B. Notwithstanding anything to the contrary under this Agreement, Company's total liability for Losses sustained by Client for any cause whatsoever, and regardless of the form of action, shall be limited to the total amount of fees paid by Client to Company over the previous thirty (30) day period. In no event will Company be liable for any lost profits, goodwill, punitive or other consequential, special or indirect damages suffered by Client in connection with or arising from Company's performance of the this Agreement, even if Client has been advised of the possibility of such damages.
C. Aged Leads. Consumer Leads that were generated prior to October 16, 2013 ("Aged Leads") are NOT compliant with Telephone Consumer Protection Act (TCPA) regulations for use with Auto‐Dialer, Prerecorded Messaging, or calls/text messaging to Cellular Phones. Aged Leads are recommended for manual calling only.
CLIENT HEREBY ASSUMES ALL RISKS THAT SOME AGED LEADS MAY CONTAIN OUTDATED PHONE NUMBERS, IDENTIFIED CELLULAR PHONE NUMBERS, OR OTHER CONTACT INFORMATION, AND THAT THE CONSUMER MAY BE REGISTERED WITH A STATE OR FEDERAL DO-NOT-CALL REGISTRY. CLIENT SHALL VERIFY ALL CONTACT INFORMATION AGAINST SUCH REGISTRY(IES) TO INSURE THAT CONSUMER IS NOT LISTED PRIOR TO CONTACTING THE CONSUMER.
IX. Non‐circumvention and Non-Disparagement
Client hereby acknowledges that the identity, pricing, contractual relationship, and related business information about Merchants or other vendors who provide Customer Leads to Company were obtained through significant efforts by the Company, and is therefore a valuable and proprietary trade secret belonging to Company. Client further acknowledges and agrees that the disclosure of such information would be harmful and detrimental to Company's business. Client hereby covenants and agrees that it will not: (1) knowingly cause, induce or encourage any Merchant, licensor, licensee, vendor, client, or any other third party with whom Company or Client have a business relationship to terminate or change any such relationship in a manner which would be materially adverse to Company; (2) enter or attempt to enter into a direct contractual relationship with any of Company's Merchants or business partners. Client further agrees to forbear from making, causing to be made, publishing, ratifying or endorsing any and all disparaging remarks, derogatory statements or comments made to any party with respect to Company. Further, Client agrees to forbear from making or threatening to make any public or non-public statement with respect to any claim or complaint against Company.
X. Term & Termination
This Agreement shall commence on the Effective Date and shall remain in force and effect until such time as either party terminates this Agreement. Either Party may terminate this Agreement, with or without cause, by providing ten (10) calendar days written notice to the other Party of its intent to terminate this Agreement. All notices shall be in writing, addressed to the Party being notified, and deemed to have been effectively given and received when: (1) received if sent by registered or certified U.S. mail, postage prepaid, with a return receipt requested; (ii) when transmitted by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by email with a read receipt confirmation; or(iii) sent if delivered personally or sent by express courier service and receipt is confirmed by the sender. Notices shall be addressed as follows:
If to Company:
1240 Rosecrans Ave. Ste. 120
Manhattan Beach, CA 90266
If to Client:
A. Independent Contractor Status. The relationships of the Parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise.
B. Enforceability. If any provision of this Agreement is found by a court of competent jurisdiction to be illegal, void or unenforceable, then the remainder of the Agreement will continue in full force and effect, but only to the extent that the original intent of this Agreement would remain unchanged in any material respect.
C. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without reference to the choice of law provisions thereof. The Parties hereto hereby consent to the exclusive jurisdiction and venue of the Southern and Central United States District Courts in the state of California, or any California state court where venue is proper. In the event of any dispute between the Parties arising out of this Agreement, the Party prevailing in any legal action or proceeding shall be entitled to recover from the other its costs and expenses thereof, including, specifically, its reasonable attorneys' fees.
D. Force Majeure. No failure, delay or default in performance of any obligation of a Party to this Agreement shall constitute an event of default or breach of the Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such Party including, by way of illustration and not limitation, action or inaction of governmental agency, civil or military authority, fire, strike, lockout or other labor dispute, inability to obtain labor or materials on time, flood, war, riot, theft, earthquake and other natural disaster ("Force Majeure Event"). The Party affected by such Force Majeure Event shall take action to minimize the consequences of any such Force Majeure Event. A Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall give to the other Party prompt written notice of the facts which constitute such Force Majeure Event, when it arose, and when it is expected to cease.
E. Entire Agreement. This Agreement, including any Purchase Order(s) hereby incorporated by reference, constitutes the entire agreement between the Parties. There are no oral or written representations, understandings or agreements, which are not fully expressed herein.
F. Facsimile and Electronic Signatures. Scanned signatures or certified digital signatures created securely to ensure authenticity (generated Adobe Acrobat or similar software) shall be treated as original signatures and shall be binding upon the Party transmitting such scanned signatures.
G. Modification by Subsequent Agreement. This Agreement may be modified by subsequent agreement of the Parties only by an instrument in writing signed by both of them. In addition, Company reserves the right to unilaterally amend the terms of this Agreement as needed to comply with regulatory and statutory law by providing written notice to Client thereof.