A. “Dashboard” means that information on Seller’s website, accessible to Customer, that reflects the Customer’s company profile and contact information, requested Lead filters, Lead price charged by Seller, payment details and preferences, and similar information.
B. “Exclusive Lead” means, subject to Section VI, a Lead (including all related Lead Information, in whole or in part) that, once sold by Seller to Customer, Seller will sell to any company other than Customer, so long as such Lead is not rejected by Customer.
C. “Lead” means a residential or commercial consumer who has entered the consumer's personal contact information (“Lead Information” to include, but not limited to, the consumer’s name, e-mail address, residential address, and telephone number) into a form on a website to express the customer’s interest to be contacted by Customer (or its affiliate(s)) about solar energy equipment installation and/or related services for the consumer's home or business.
D. “Non-exclusive Lead” means, subject to Section VI, a Lead (including all related Lead Information, in whole or in part) that, once sold by Seller to Customer, Seller will not sell to more than three other companies, so long as such Lead is not rejected by Customer.
E. “Purchased Lead” means a Lead that Seller has sent to Customer that Customer has received and has not validly rejected pursuant to Section IV herein.
II. Relationship to Dashboard. This Agreement consists of the terms and conditions set forth below, along with the terms and conditions reflected in the Dashboard. Among other terms and conditions, the Dashboard will set forth the Lead filters and pricing then in effect in realtime. If in conflict, this Agreement shall prevail over the Dashboard.
III. Provision of Compliant Leads. During the Term of this Agreement, pursuant to the terms and conditions set forth in this Agreement and on the Dashboard:
A. Seller may send to Customer Exclusive Leads and/or Non-exclusive Leads for purchase, provided that Seller will identify with each Lead sent to Customer whether such Lead is offered as an Exclusive Lead or a Non-exclusive Lead;
B. Seller represents, warrants, and covenants to Customer that:
1. all Leads offered to Customer under this Agreement will be at the time of offer in compliance with all applicable laws, rules, and regulations, whether local, state or federal, necessary to perform under this Agreement, including without limitation, the laws and rules (in each case, as they may be amended from time-to-time), in effect as of the Effective Date or at any time during the Term of the Agreement, related to the state and national Do Not Call Registries, the CAN-SPAM Act of 2003 (“CAN-SPAM”), the U.S. Federal Trade Commission’s Amended Telemarketing Sales Rule (“TSR”), and the Telephone Consumer Protection Act of 1991 (“TCPA”), the FTC staff guidelines for online negative option marketing disclosures, and FTC “Dot Com Disclosures” guidelines, the Foreign Corrupt Practices Act of 1977 ("FCPA"), and any state or local laws analogous or related to the foregoing laws and rules; and,
2. all Leads offered to Customer under this Agreement have been obtained with the expressly consent of the Leads to the submission of their information via a process that is compliant with applicable federal, state and local laws (including, without limitation, the Electronic Signatures in Global and National Commerce Act (ESIGN)).
C. Customer may, at any time, request that Seller modify the geographic filter(s) and/or desired quantities of Leads that will be sourced from Seller under this Agreement. Seller will update Customer’s requested Lead geographic filters and/or desired quantities as soon as reasonably possible after receiving written notice from Seller of the requested changes. Any requested changes by Customer under this sub-section do not take effect under this Agreement until reflected in the Dashboard.
IV. Rejection of Leads.
A. The Parties agree that Customer may reject any Lead that it receives from Seller, but only if Customer has a reasonable basis to believe that such Lead falls into one or more of the following categories:
1. Invalid Phone Number - the Lead’s provided telephone number is disconnected or otherwise cannot connect;
2. Wrong Phone Number - the Lead’s name is not associated with the Lead’s telephone number;
3. Commercial Lead - the Lead is for a business that Customer cannot service (applicable only if Customer elects not to receive such commercial Leads);
4. Duplicate Lead - the Lead was previously sent to Customer within the past thirty (30) calendar days;
5. Lead Has Solar Installed Already – Lead is a homeowner that already owns a solar energy system and is looking for information other than purchase of solar energy system (e.g. how to repair or clean the system);
6. Non-Participating Utility – Lead has a non-participating energy utility service;
7. Lead Not Interested – Immediately upon Customer’s (or its affiliate’s) call to Lead, Lead refuses contact or immediately indicates he or she is not interested in receiving a solar energy system quote (e.g., customer says “I never signed up,” “I don’t care about solar,” “Don’t call ever again,” or words to a similar effect);
8. Lead Out of Area – Lead’s residence or business is outside of campaign zip codes as provided to Seller by the Customer;
9. Renter – Lead does not own his or her residence or business, or the residence is a condo or multifamily unit;
10. Roof / Site Issue – Lead discloses that he or she has a residence and/or business that is not suitable for a solar energy system (e.g., mobile homes), provided that if the Lead’s roof needs re-roofing or minimal bracing to its structure, such Lead is not subject to rejection on this basis;
11. Shade – Lead’s residence or business has severe shading;
12. Test Lead – a lead that was a test that slipped through filter criteria.
B. No Contact. Consistent with Section III.B, all Leads that Seller delivers to Customer will have expressed valid opt-in consent to learn more about the costs and benefits of solar energy systems and related services for their home and/or business. Seller will deliver all Leads to Customer in real time (i.e., upon generation of the Lead), or as soon thereafter as reasonably possible. Customer understands and agrees that Customer (and/or its affiliates) may not be able to contact some Leads that Customer receives from Seller, i.e., “No Contact.” As one “No Contact” example, Customer may call and leave a voicemail message for a Lead, but the Lead may not call the Customer back. The Parties agree that “No Contact” for a Lead is not a valid basis for Customer to reject such Lead under this Section.
C. Notwithstanding Section VIII below, Seller reserves the right on at least 72 hours written notice (e-mail sufficient) to (1) terminate this Agreement if Customer has unreasonably high return rates, or (2) implement a reasonable limit on the percent of Leads returned by Customer, with such limit specified in the written notice given under this subsection.
V. Payment for Purchased Leads.
A. Customer must maintain a positive account balance with Seller in order to receive Leads from Seller under this Agreement. Customer will fund its account balance with Seller as soon as reasonably possible after the Effective Date, in an amount consistent with its intended purchase of Leads and by one of the methods set forth in Section V.B below. Notwithstanding any other provision in this Agreement, Seller has no obligation to send any Leads to Customer until Seller has funded its account balance as required under this Section V.A. After funding its account balance, each Lead that Seller sends to Customer will result in a deduction to the Customer’s account balance with Seller in the amount specified by the Lead price reflected on the Dashboard at the time Seller sends the Lead to Customer. Leads validly rejected pursuant to Section IV will be credited back to Customer’s account balance in the amount that was deducted when such Lead was sent by Seller to Customer.
B. Customer’s payments under this Agreement to Seller will be made by one of the following three credit card methods and any of these methods of payment will constitute authorization by the Customer for Seller to charge Customer’s credit card as agreed:
1. on the phone by an authorized agent of the Customer with an authorized sales representative of Seller;
2. on a schedule as agreed upon by an authorized agent of the Customer with an authorized sales representative of Seller and as per Credit Card authorization form; or,
3. as established in the Seller’s secure lead management platform by an authorized agent of the Customer:
i. recurring automatic payments (e.g., ’pay as you go’); or,
ii. with one-time payments for agreed upon budget amounts.
VI. Ownership of Leads. Seller shall grant Customer temporary joint ownership of the Lead when it sends a Lead to Customer. Where Customer rejects or does not pay for a Lead (e.g., due to a negative account balance), Customer’s temporary joint ownership of that Lead will terminate immediately, and Customer will have no further right, title, or interest in such Lead and that Lead shall be the sole property of Seller. Except as expressly provided in this Agreement, Seller will not sell, distribute or otherwise use a Purchased Lead for a period of ninety (90) calendar days following delivery of such Lead (i) in the case of a Non-exclusive Lead, to Customer and to more than three (3) other companies, or (ii) in the case of an Exclusive Lead, to any company other than Customer. Notwithstanding the foregoing, Seller retains the right to maintain a relationship with the Lead through email or other communication.
VII. Compliance with Laws. Each Party represents, warrants, and covenants that it, and all third parties acting on behalf of or for the benefit of each Party in relation to this Agreement, will comply at all times during the term of this Agreement with all applicable laws, including privacy laws (including the right to share contact information with Company) and marketing and advertising laws (including the CAN-SPAM Act and any state and local spam laws, the Federal Trade Commission Act, state and local unfair and deceptive trade practices acts, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act, and state and local telemarketing, calling, and texting laws and regulations).
VIII. Term of Agreement & Termination.
A. The term of this Agreement will begin upon the Effective Date. Except as otherwise expressly provided herein, either Party may terminate this Agreement at any time, with or without cause, by giving the other party thirty (30) calendar days’ notice of termination. Notice must be in writing (including e-mail). Where Customer terminates this Agreement without cause, Seller will have the right to continue to send Leads pursuant to the terms and conditions of this Agreement until Customer’s account balance with Seller is $0.00.
B. Either Party may terminate this Agreement if the other Party has materially breached its obligations under this Agreement and fails to cure that breach within five (5) calendar days after delivery of written notice of the breach. The termination shall be automatically effective as of the end of the cure period if there is a failure to cure.
C. Either Party may immediately terminate this Agreement if it has a reasonable, good faith belief that the other Party has (i) breached Section VII of this Agreement or (ii) caused actual or potential harm to the other Party by violating any applicable law.
IX. Confidentiality. All confidential, non-public or proprietary information, pricing, arrangements, correspondence, Leads (including all related Lead Information), Dashboard information, and any other information acquired by one Party from the other Party related to this Agreement, and including the fact of the existence of this Agreement and the terms and conditions set forth herein (collectively, “Confidential Information”), shall remain strictly confidential (except as required by law) and shall not be used, directly or indirectly, by the other Party hereto in its business adverse to or separate from its relationship with the one Party. Notwithstanding anything to the contrary herein, the Party receiving Confidential Information (“Receiving Party”) may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, on condition that the Receiving Party gives the Disclosing Party reasonable prior notice of the compelled disclosure to the extent legally permitted. The obligation of confidentiality contained in this Section will survive any termination of this Agreement for three (3) years from the date of disclosure.
X. Intellectual Property. Nothing in this Agreement shall transfer ownership of or any right, title, or interest to any intellectual property (including, but not limited to, any underlying technology, software, applications, data, methods of doing business or any elements thereof) of either Party, nor grant any right or license other than those expressly stated in this Agreement. In addition, each Party acknowledges that all information, data and reports received from the other Party pursuant to this Agreement are proprietary to and owned by the transmitting Party unless otherwise specified in this Agreement.
XI. Disclaimer of Warranties; Indemnification; Limitation on Liability and Damages.
A. Disclaimer of Warranties. Except as expressly provided herein, the Leads provided by Seller to Customer under this Agreement are provided on an “as-is” basis, without any warranties or representations expressed, implied or statutory, including, without limitation, warranties of quality, performance, non-infringement, merchantability or fitness for a particular purpose, nor are there any warranties created by a course of deal, course of performance or trade usage.
B. Indemnification. Each Party indemnifies and holds harmless the other Party, as well as such other’s respective officers, directors, employees and direct or indirect investors and any of the foregoing person's agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement), from and against any and all claims, losses, costs, liabilities, expenses, or damages, arising from their respective acts and obligations arising from or relating to this Agreement, including any costs of litigation (including but not limited to attorneys' fees). The indemnification provided herein shall survive the termination of this Agreement, provided that due demand was made on the erring/defaulting Party.
C. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, REGARDLESS OF THE THEORY ADVANCED, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, EXCEPT IN THE EVENT OF AN INDEMNITY CLAIM BASED ON A FINE, PENALTY, OR REFUND MANDATED BY A GOVERNMENT AGENCY.
XII. Required Licenses, Permits, and Registrations. Each Party represents that it has and shall maintain for the duration of the Agreement all required government permits, registrations and licenses (collectively, “Licenses”) to fulfill its obligations under the Agreement. Each Party shall hold the other Party free and harmless from any liability arising from its failure to obtain any necessary Licenses.
A. Each Party shall be deemed to be an independent contractor with respect to the subject matter of this Agreement, and nothing contained in this Agreement shall be deemed or construed in any manner as creating any partnership, joint venture, co- ownership, employment, agency, fiduciary, or other similar relationship. Nothing contained in this Agreement shall be construed to (I) give either Party the right or power to direct or control the day-to-day activities of the other Party or the other Party’s employees or independent contractors, or (ii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
B. Neither Party may assign its rights or obligations under this Agreement to any other party, and any attempt to do so will be void and without effect.
C. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof. The jurisdiction and venue for all disputes arising out of or related to this Agreement (i.e., disputes about payment) shall be any state or federal court with proper jurisdiction located in Los Angeles County, California. In any action or proceeding related to or arising from this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs incurred in bringing said action or proceeding.
E. This Agreement, together with the terms, conditions, and other information on the Dashboard, represents the entire agreement and understanding between Customer and Seller, supersedes all prior agreements and understandings between both Customer and Seller, oral or written, if any, and serves as notification that all prior agreements if any, are officially terminated. This Agreement may not be modified, amended, varied, waived, explained, added to, extended, changed in any way, except by a written instrument executed by a person authorized to execute such an instrument on behalf of both Customer and Seller.
F. The recitals, headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
G. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that this Agreement shall otherwise remain in full force and effect and enforceable.
H. Only the Parties hereto are entitled to enforce the provisions of this Agreement and no third party beneficiary is intended under this Agreement.
I. Customer and Seller are both independent parties electing to enter into Agreement as the result of negotiations and that both parties are capable commercial entities. Furthermore, Customer and Seller each acknowledge that each Party is of equal bargaining power and neither Party has leveraged any superior knowledge in negotiating this Agreement. The Agreement shall be treated as if prepared jointly and neither Party shall hold any section of the Agreement for or against the other Party based on the role of either Party in the actual preparation of this Agreement.
J. All notices permitted or required by this Agreement will be sent by registered mail or delivered by courier (to the address set out below) or electronically (to the email address set out below), by either Party to the other at its respective addresses indicated in this Agreement. Should there be change in the business address, both Parties mutually agree to notify each other at the soonest possible time, to avoid unnecessarily delay in the conduct of business.