CONSENTED USER PURCHASE AGREEMENT
FLUENT CALL SOLUTIONS
MASTER SERVICES AGREEMENT
(Online Agreement)
Last Updated: July 9, 2024
This MASTER SERVICES AGREEMENT (“Agreement“) is made by and between Fluent Call Solutions (a d/b/a of Winopoly, LLC, a Delaware limited liability company) with its principal office located at 300 Vesey Street, 9th Floor, New York, NY 10282 (“Service Provider“) and the person whose name appears on the IO (“Client“) and is effective as of the date set forth in one or more Insertion Orders (each an “IO“). Service Provider reserves the right to modify this Agreement at any time by posting the revised Agreement on its website. Client’s continued use of services contemplated hereunder (“Services“) after any such modification constitutes Client’s acceptance thereof. If Client does not agree to any such modification of the Agreement, Client must stop utilizing the Services. Service Provider and Client may be referred to individually as a “Party“, or collectively as the “Parties.”
RECITALS
Service Provider has identified buyers (“Buyers“) who provide goods or services. By using its proprietary systems and managed call center operations, Service Provider can match interested users (“Users“) to Buyers.
Clients wish to utilize the Service Provider services by: (i) providing Qualified Leads (as defined below) of Users to be contacted via outbound telemarketing by Service Provider or a Buyer (“Qualified Lead Campaigns“), (ii) providing warm transfers of outbound dialed Users to Service Provider or Buyer Call Centers (“Outbound Call Transfer Campaigns“), (iii) providing warm transfers of inbound User initiated calls to Service Provider or Buyer Call Centers (“Inbound Call Transfer Campaigns“), (iv) emailing Users with a link to a dedicated Service Provider or Buyer website(s) which emails will contain click-to-call links, toll-free numbers and/or other means that Users can utilize to initiate inbound calls to Service Provider or Buyer Call Centers (“Email Campaigns“), and/or (v) such other means as may be identified in an IO.
AGREEMENT
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following terms will have the meanings set forth below:
1.1 “Applicable Laws” means all applicable federal, state and local laws, statutes, rules, regulations and policies relating to telemarketing, text messaging, lead generation and advertising including the Federal Trade Commission Act, the Telephone Consumer Protection Act (“TCPA“), state “Mini TCPA” laws, Do Not Call Implementation Act, Amended Telemarketing Sales Rule (“TSR“), Federal Trade Commission (“FTC“) and Federal Communications Commission (“FCC“) rules, regulations and opinions including FCC 23-107 scheduled to take effect on January [18], 2025 (“FCC 23-107“), rules applicable to text messaging including carrier rules and the CTIA Short Code Monitoring Handbook, the CAN-SPAM Act of 2003, California Bus. & Prof. Code §17529, et. seq. and other state laws regulating commercial email (collectively “Email Laws“), rules issued by the Center for Medicare and Medicaid Services (“CMS Rules“), and applicable privacy and data protection laws including the California Consumer Protection Act of 2018, the California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, the Utah Consumer Privacy Act and data privacy laws which take effect after the date hereof (collectively, “Data Privacy Laws“), as such acts, laws, rules, regulations and/or opinions may be amended, modified or supplemented from time to time.
1.2 “Call Transfers” means Inbound and Outbound Call Transfers.
1.3 “Campaign” means (i) a Qualified Lead Campaign, (ii) an Outbound Call Transfer Campaign, (iii) an Inbound Call Transfer Campaign, (iv) an Email Campaign, or (v) a Campaign described in an IO.
1.4 “Creative” means advertisements, webpages, call center scripts and any components or elements thereof created by Client including banner ads, emails, ad copy, direct mail, contextual ads and/or other content that comprises the Creative.
1.5 “Header Information” means the source, destination, and routing information attached to an Email Message, including the originating domain name, originating email address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the Email Message.
1.6 “Inbound Call Transfer” means a [warm] transfer of a call where the User has called into a Client’s call center, such User meets Service Provider’s or Buyer’s screening criteria as may be described in an IO, and then Service Provider transfers the call to Service Provider’s or a Buyer’s call center in compliance with Applicable Laws.
1.7 “Outbound Call Transfer” means a [warm] transfer of a call where the Client has outbound dialed a User who has provided TCPA Consent to be contacted by Service Provider or a Buyer in compliance with Applicable Laws including the one-to-one and logically and topically related rules set forth in FCC 23-107.
1.8 “Qualified Lead” means a User who has provided TCPA Consent to be contacted by Seller (who can be either Service Provider or a Buyer) in compliance with Applicable Laws including FCC 23-107 and which includes the consumer’s name, telephone number, zip code and Jornaya LeadID/Active Prospect TrustedForm.
1.9 “Seller” means the person on whose behalf “one to one” TCPA Consent is obtained as described in FCC 23-107.
1.10 “TCPA Consent” means the affirmative “prior express written consent” within the meaning of 47 CFR §1200(f)(9), from a User providing their electronic written signature (within the meaning of the e-Sign Act), to be contacted by outbound telemarketing or text message by a Seller in compliance the amendments to the TCPA Consent rules contained in FCC 23-107.
2. Campaign Terms. Each IO shall specify the type of Campaign, advertising vertical, the legal entity name(s) of the Seller(s) or included in the TCPA Consent language or script for Inbound Call Transfers, the payable action and the price per action and payment terms, daily/monthly caps, Campaign duration, targeting criteria, exclusivity and any other terms and conditions at variance with this Agreement. If there is any inconsistency between this Agreement and an IO, the terms in the IO shall prevail.
3. Service Provider Services and Responsibilities.
3.1 In General – Compliance. Service Provider shall (a) conduct Services in accordance with the Applicable Laws and Ethical Guidelines for Telemarketers published by the Direct Marketing Association (“Ethical Guidelines“); (b) obtain and maintain all licenses or permits necessary to perform the Services; (c) perform the Services in accordance with this Agreement and the specific terms and conditions set forth in one or more IOs, in a professional and business-like manner, and at a level of performance, including timeliness and accuracy, consistent with the TSR, CMS Rules, where applicable and the prevailing industry standards and practices.
3.2 Services for Campaigns. Service Provider shall provide the following Services, where applicable, for all Campaigns.
3.2.1 Client Contact Program. Service Provider shall use its data dialing software (“Dialer“) and proprietary CRM scripting and lead management software to plan, test, and manage Campaigns, as detailed herein and/or individual IOs. Service Provider shall monitor and manage the Campaigns to maximize performance and help achieve Client’s desired results.
3.2.2 Management. Service Provider will (i) manage, direct, hire and train all call center representatives (“Reps“) assigned to Campaigns; and (ii) provide all necessary facilities, telephone equipment and proper administrative and clerical support required to perform its duties and responsibilities under this Agreement.
3.2.3 Ancillary Functions. Service Provider shall perform all set-up and ancillary functions associated with the Services described in this Agreement which include the following:
3.2.3.1 Programming. As required on a Campaign-by-Campaign basis, develop, or acquire and implement, all computer systems, software applications and other programs required for performance of the Services and any future enhancements or modifications thereto.
3.2.3.2 Training. Select and train all Reps to perform the Services in accordance with the Ethical Guidelines, Applicable Laws, and highest industry standards and practices.
3.2.3.3 Scripts and Copy. Subject to Client’s approval, not to be unreasonably withheld or delayed, implement telemarketing scripts and training materials provided by Service Provider through the Dialer. Service Provider will use commercially reasonable efforts to ensure the Reps strictly adhere to the approved scripts as displayed by the Dialer and do not in any way misrepresent themselves or any products or services.
3.2.4 Identification of Buyers. Service Provider shall identify Buyers for each Campaign, the goods and services offered by such Buyers and shall use reasonable commercial efforts to ensure that such Buyers have practices and procedures in place to enable such Buyers to provide the goods and services and where necessary handle Call Transfer in a professional and workmanlike manner in compliance with Applicable Laws including, where applicable, CMS Rules.
3.2.5 Scrubs. Service Provider shall scrub Qualified Leads and Inbound and Outbound Call Transfer Campaigns against internal and third-party scrubs including the BlackListAlliance.com and DNC.com Litigator Scrub Blacklist and DNC lists provided by a Buyer.
3.3 Call Transfer Campaign Services. Service Provider shall maintain systems that can accept Inbound and Outbound Call Transfers from Clients and direct the calls to Service Provider or Buyer Call Centers who are named Sellers that comply with Applicable Laws including FCC 23-107 and match verticals/targeting criteria of the Users.
3.4 Outbound Telemarketing Services. Service Provider agrees to function as a BPO call center for Client and make outbound telemarketing calls from its Service Provider or a Buyer Call Center to Qualified Leads supplied by Client. Client acknowledges that Service Provider will be calling Qualified Leads on behalf of the Client or the Buyer and not on behalf of Service Provider.
3.4.1 Oral TCPA Consent Service Provider may develop means of obtaining TCPA Consent on Outbound Call Transfers by securing E-Sign Act compliant TCPA Consent and contemporaneously delivering to the User via text, email or such other means, the [consent agreement] or via such other means as may be developed, that enables Service Provider to transfer the User to the Seller named in such TCPA Consent.
3.5 Email Campaign Services. Service Provider shall operate the Dedicated Websites to promote goods and services that are consistent with Client’s email marketing Campaigns and the interests of Client’s Users and the Buyers. Service Provider shall provide click-to call-links, toll free call-in numbers and QR codes that trigger an inbound call so Users can make inbound calls to Service Provider or Buyer Call Centers.
4. Client Obligations.
4.1 Consent on Seller’s Behalf. Client shall use forms that solicit TCPA Consent for Service Provider or Buyer in their capacity as a Seller in the body of the consent language or in a survey question that comply with Applicable Laws including FCC 23-107 and where applicable, CMS Rules, in all cases to identify Users who have expressed interest in talking with a Rep in the vertical as specified in one or more IOs.
4.2 Consent Records. For Campaigns other than Inbound Call Transfers, Client shall collect evidence of TCPA Consent for each Qualified Lead by using Jornaya’s LeadID and/or Active Prospect’s TrustedForm for each Qualified Lead and Outbound Dialed Call Transfer . Where Client uses Jornaya, Client shall maintain the Lead ID for each TCPA Consent obtained (“Jornaya Consent Records“). Where Client uses TrustedForm, Client shall maintain the Certificate ID and Certificate of Authenticity for each TCPA Consent obtained (“TrustedForm Consent Records“). Client shall retain the Jornaya Consent Records and TrustedForm Consent Records, as well as any other records showing prior express written consent, as applicable (collectively, the “Prior Express Written Consent Records“), for a minimum of six (6) years following collection of same. Client must, within two (2) business days of receipt of Service Provider’s request, provide the: (i) Prior Express Written Consent Records to Service Provider; and (ii) name, date, time, IP address and referral URL where the applicable individual(s) provided TCPA Consent.
4.2.1 Where Client employs Jornaya’s Lead ID or Active Prospect’s TrustedForm in connection with its lead-generation services: (i) Client must include a prominent link to a privacy policy (“Client Privacy Policy“) on the webpage(s) where consumer data associated with the leads is collected (“Data Collection Pages“) that complies with all Applicable Laws and includes all required consumer disclosures and means to exercise consumer rights; (ii) the Client Privacy Policy must contain a prominent disclosure, in plain English, stating that Client employs Jornaya’s Lead ID and/or Active Prospect’s TrustedForm (collectively, “Site Visit Recordation Technology“), as applicable, in order to record consumer’s TCPA Consent; (iii) Client must obtain affirmative consent to use Site Visit Recordation Technology from each user prior to Jornaya’s Lead ID and/or Active Prospect’s TrustedForm scripts that facilitate recreation of such user’s actions on the applicable Data Collection Page (“Recordation Prior Consent“); (iv) Client must obtain Recordation Prior Consent by including prominent language above a “submit” or other call to action button (collectively, “Submit Button“) on the Data Collection Page stating that, by clicking on the Submit Button the user understands and agrees that the Data Collection Page uses Site Visit Recordation Technology to memorialize site visits, including technology provided by third parties, including Jornaya’s Lead ID or Active Prospect’s TrustedForm, as applicable; and (v) Client shall ensure that Jornaya’s Lead ID and/or Active Prospect’s TrustedForm shall not record such user actions on the applicable Data Collection Page unless and until Client has obtained Recordation Prior Consent as indicated above.
4.3 No Pre-Recorded Messages. Client will not use prerecorded messages or artificial voice technology including soundboard technology, AI-assisted voice technology, ringless voicemail or other automated voice methods to contact Users and/or generate/provide Qualified Leads or Outbound Calls Transfers; Client may only contact Users using live call center agents.
4.4 DNCs; Opt-Outs/Revocations. Client shall scrub all Qualified Leads and Call Transfers against its internal DNC list, as well as lists provided by third-party vendors, including the BlackListAlliance.com and DNC.com Litigator Scrub. Client shall maintain an opt-out system that records TCPA Consent revocations received from Users. Client will notify Service Provider of Users that revoke TCPA Consent within ten (10) days after transferring a Qualified Lead or Call Transfer to Service Provider or as otherwise provided in FCC rules.
4.5 CMS Compliance. If an IO specifies that Client is supplying Qualified Leads or Call Transfers or using Email Messages for CMS campaigns, Client shall comply with applicable CMS Rules including (i) submitting Creatives directly, or through third-party clients, to CMS via the Health Plan Management System (“HPMS“) and obtaining the corresponding standardized material identifications (“SMIDs”); (ii) obtaining carrier opt-in for the use of the Creatives; and (iii) coordinating with Service Provider regarding the foregoing.
4.6 Third Party Service Providers. If the Client operates or uses telemarketers and/or call centers, Client must successfully complete an initial telemarketing audit before it can submit Qualified Leads and Call Transfers. Service Provider will only approve those Client Sites and Client call centers that it believes, in its reasonable judgment, comply with Applicable Laws.
4.7 Audit. Client will be required to complete an audit for each marketing channel Client will be using to collect Users/Call Transfers (“Audit“). Client may not conduct a Campaign and transfer Qualified Leads or Call Transfers or conduct an Email Campaign without first completing the Audit and receiving Service Provider’s written approval. Client may not materially modify its practices for soliciting Qualified Leads or Call Transfers unless it has secured Service Provider’s prior written approval to such modifications and it continues to meet Applicable Laws including regulatory, compliance and proof standards.
4.7.1 Service Provider shall review, at a minimum, Client Sites to evaluate (i) how they obtain TCPA Consent and Recordation Prior Consent; (ii) the Creative used and the applicable methods for ascertaining whether a User has expressed interest in a particular advertising vertical and, where required, in compliance with applicable CMS Rules and other vertical specific rules or standards; and (iii) the Client Sites’ implementation of Jornaya and Trusted Form for verifying that they obtained TCPA Consent. For Inbound Call Transfers, Service Provider shall review Creatives used to generate the inbound calls. Once approved, Client agrees that it will not materially modify its practices and procedures for soliciting TCPA Consent, providing proof of TCPA Consent, its Creative used to generate Inbound Call Transfers or its compliance with other Applicable Laws, including CMS Rules as disclosed in the Audit unless it has secured Service Provider’s prior written approval for such modifications, which approval may be withheld in Service Provider’s sole discretion. Service Provider reserves the right to perform subsequent Audits during the term of the Agreement if it reasonably believes (i) that any of Client’s telemarketing practices or procedures or its compliance with Applicable Laws have changed or (ii) if Applicable Laws, including judicial interpretations thereof have changed.
4.7.2 If Client uses a third-party call center, Client shall be solely responsible for the acts and omission of such third-party call center, its agents, contractors, and employees.
4.7.3 Service Provider will evaluate the opt-out practices and procedures of third party call centers to ensure that they meet the requirements set forth in Section 4.4.
4.8 Marketing Restrictions. Without limiting any of the marketing restrictions contained herein, unless expressly authorized in the applicable IO(s) or unless Client obtains Service Provider’s prior written approval in each instance, Client may not: (i) include or promote any Creative by or through any blogs, news articles, third party newsgroups, message boards or other social media outlets; (ii) use any endorsements or testimonials in connection with marketing the Creative; (iii) directly incentivize Users to provide TCPA Consent or make Inbound Calls.
4.9 No Deceptive or Misleading Practices. Client may not, nor knowingly permit any person to inflate the amount of Qualified Leads or generate Call Transfers through any deceptive or misleading practice or method including the use false or deceptive Creatives or through the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing a lead registration form.
5. Qualified Lead Campaigns – Additional Rules .
5.1 Sourcing Qualified Leads. Client shall source Qualified Leads solely from its owned and operated websites (“Client Sites“), which must be approved in advance by Service Provider; BROKERED LEADS OR LEADS SOURCED FROM THIRD-PARTY SITES ARE NOT ALLOWED. The Client Sites and the means of soliciting TCPA Consent must comply with Applicable Laws including FCC 23-107.
5.2 Transmission of Qualified Leads. Client shall transmit Qualified Leads securely via end-to-end encryption and with such information and in such format as may be specified in an IO or as otherwise designated by Service Provider from time to time.
6. Call Transfer Campaigns.
6.1 Rules Applicable to Call Transfer Campaigns.
6.1.1 Recordings. For Call Transfer Campaigns, Client shall maintain recordings of all calls, obtained prior to transfer to Service Provider or a Buyer, in a searchable database and shall provide digital recordings of same within five (5) business days of Service Provider’s written request.
6.1.2 Disconnect; No Collecting Personal Information After Transfer. Client shall not remain on a call after the successful transfer to Servicer Provider or a Buyer and shall disconnect the line where technically feasible and terminate recording after the transfer. Client shall not collect any User personal information or personal health information as that term is defined in the CMS Rules after the transfer.
6.2 Outbound Call Transfer Campaigns. Client shall only contact Users who have provided TCPA Consent for a Seller from call center(s) owned and/or under Client’s management and control and approved by Service Provider as provided for in Section 4.6
6.2.1 Client may only make an Outbound Call Transfer to the Seller(s) named in the Outbound Call which may be Service Provider or a Buyer.
6.3 Inbound Calls. Client shall generate Inbound Calls by posting dedicated call-in numbers on Client Sites, sending direct mail Creative, email, radio or TV ads, SMS messages with click-to-call numbers or other marketing channels on behalf of a Seller as required by Applicable Laws and FCC 23-107.
6.3.1 Audit of Creatives Used to Generate Inbound Calls. Client shall provide the means by which the Inbound Call was generated and a representative sample of the Creative that generated the Inbound Call. For Inbound Calls sourced from SMS messages, such SMS messages shall be sent in compliance with all Applicable Laws, including the TCPA, and upon request, Client shall provide proof of TCPA Consent and Recordation Prior Consent as provided for in Section 4.2.
7. Email Campaigns.
7.1 General Rules. Client shall only use email Creative that; (i) complies with Applicable Laws, including Email Laws; (ii) does not infringe or otherwise violate the intellectual property rights of any third party; (iii) includes a disclosure statement where it is not reasonably clear that the Creative is a paid advertisement; and (iv) is pre-approved by Service Provider. Thereafter, Client shall not materially modify any pre-approved Creative, or any component thereof without prior written approval from Service Provider. If any Email Laws are enacted or amended after the Effective Date of this Agreement setting forth standards more restrictive or materially different than those set forth herein, the more restrictive standards contained in such subsequently enacted or amended law, rule or regulation shall apply to Client.
7.2 Email Addresses. Client represents and warrants that the email addresses used by Client to email Users are from U.S. residents where the Users have manifested affirmative consent – opted in – to receive commercial emails from Client and none of the email addresses were obtained through email harvesting or dictionary attacks. Client must collect and maintain proof of direct consent for 24 months from the date of receipt and shall supply, upon Service Provider’s request, the name, date, time and IP address where the user signed-up and/or gave affirmative consent to Client to be contacted with email messages
7.3 Headers; Subject Lines; Postal Addresses. Every email sent by Client for a Service Provider campaign shall: (i) contain accurate Header Information and not use false or misleading registrations for email accounts, or use IP addresses whose purpose is to conceal the email’s origin and shall include in (a) a traceable publicly registered domain name, or (b) the Client’s company name or registered d/b/a; and (c) not contain a third party domain name without the third party’s written permission; (ii) not utilize a subject line (a) that is misleading, (b) that implies any prior personal or business relationship, (c) that contains any personal names, confirms information/prizes, or (d) that implies the email is a response to the recipient; (iii) not seek or obtain unauthorized access to a User’s computer or connected device that enables sending any commercial email; (iv) if the email is sent on Service Provider’s behalf, Service Provider’s physical mailing address and customer service/unsubscribe/opt-out link or, if Client is acting as the “sender” of the email for CAN-SPAM purposes, Client’s physical mailing address and customer service/opt-out/unsubscribe link; (v) contain the intended recipient’s email address in the “to” line; and (vi) include the identifiers and disclaimers that Service Provider assigned to the email.
7.4 Opt-Out Links. With regard to opt-out links, (i) the opt-out link or electronic address must remain valid for at least sixty (60) days after delivery of the email; (ii) the opt-out domain must match the sending domain; and (iii) if the sending domain is registered to a d/b/a, the opt-out domain must match that d/b/a. Client shall not place commercial offers on the opt-out page and the opt-out mechanism must be free of charge to recipient and use the same electronic means by which the email was sent or other electronic means, if not practicable. Further, Client shall not (a) complicate the opt-out process (e.g., using CAPTCHA or any other interim pages); (b) require recipient to pay a fee for opt-out; (c) require recipient to provide any information other than the email address and opt-out preferences (specifically sender shall not ask for any personally identifying information); (d) require recipient to take any steps other than send a reply email message or visit a single Internet Web page to opt-out; (e) alter or cause to be altered any transmission data; or (f) install or cause to be installed any computer program. Client must stop all emails within ten (10) business days of receipt of an opt-out request. Client is prohibited from selling or otherwise transferring email addresses of persons who have opted-out.
7.5 Suppression Lists. Service Provider will make available to Client a regularly updated suppression list containing current unsubscribe requests in conformance with CAN-SPAM through Optizmo, its third party suppression list management service. Client shall update its suppression list at least ten (10) days prior to sending any emails on Service Provider’s behalf and include in such list any unsubscribe requests that it receives for Service Provider offers. Client acknowledges that Optizmo enables Service Provider to monitor whether Client is updating its suppression lists on a timely basis and if Client fails to do so, Service Provider reserves the right to take disciplinary action up to and including terminating Client’s right to send emails on Service Provider’s behalf. Client will not send emails to any address included in Service Provider’s or its own internal suppression list and will not sell, license or otherwise make the suppression list available, in whole or in part, to any third party or use it for any purpose other than as provided for in this Section 7.5.
8. Complaints and Claims.
8.1 TCPA Claims. If Service Provider receives a third-party claim that a consumer was contacted in violation of the TCPA, Service Provider shall promptly provide Client with a copy of the claim and the Parties shall develop a mutually agreeable response plan. Client shall promptly provide Service Provider with proof of TCPA Consent in compliance with Section 4.2 and shall, unless Service Provider agrees to the contrary, interface with the claimant in an effort to expeditiously resolve the claim.
8.2 Claim Resolution. Client shall use commercially reasonable efforts to resolve claims from claimants who claim to have been contacted without providing TCPA Consent by providing such claimants with proof that TCPA Consent was in fact obtained.
8.3 Settlements. Except as they relate to claims arising from violations by Service Provider, any settlements with a claimant (including any legal fees or costs in connection therewith) must be funded exclusively by Client, must include a full release of Service Provider and its principals and employees, and shall be subject to Service Provider’s prior written approval. If Service Provider elects to fund a settlement, Service Provider may offset the settlement against amounts owed to Client.
8.4 Email Complaints. Client is solely responsible for all consumer complaints that it receives in connection with Email Campaigns that it conducts and shall bear any costs and/or fees charged by its Internet Service Provider (“ISP“) related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from consumers, regulatory agencies or otherwise. Client shall: (i) make adequate disclosures to those Users regarding its email, privacy and security policies; (ii) timely respond to all complaints after Client becomes aware of the complaint; and (iii) provide Service Provider with a copy of every complaint related to Service Provider, promptly, upon Client’s receipt thereof.
9. Fees; Reporting; Audit Rights.
9.1 Fees. Service Provider shall pay Client fees (“Fees“) in an amount equal to, on the basis of and pursuant to the payment terms specified in the IO. Unless otherwise provided for in an IO, and provided that Service Provider delivers Client real-time reporting, the number of Qualified Leads and Call Transfers and Gross Revenue shall be determined by Service Provider, subject to the adjustments provided for in Section 9.2. Service Provider shall send monthly reports to Client that set forth the number of Qualified Leads, Inbound Call Transfers, Outbound Call Transfers, for rev share Campaigns, Gross Revenue (as defined in the IO) and Service Provider’s Fees within ten (10) days following the last day of the calendar month in which applicable actions occur or revenue is collected (“Service Month“). The Parties will use commercially reasonable efforts to finalize the number/amount of actions, Gross Revenue, and Fees owed as promptly as possible. Service Provider shall pay Client thirty (30) days after either the conclusion of the Service Month or the date the invoice is delivered, if later, or pursuant the terms specified in the IO. If Client does not render an invoice within six (6) months after the conclusion of a given Service Month, Service Provider shall have no liability to pay for the Qualified Leads, Inbound Call Transfers or Outbound Call Transfers covered by such invoice.
9.2 Scrubs. Service Provider will scrub all Qualified Leads and Call Transfers against its internal DNC list and remove any matches generated in connection therewith. Service Provider will also remove Duplicate Leads, Invalid Leads and Fraudulent Leads. For purposes of this Agreement, a “Duplicate Lead” is a User that had been added to Service Provider’s database of users within thirty (30) days of Client’s transfer of the subject User to Service Provider; (ii) an “Invalid Lead” means a lead that is generated in connection with a violation of any of the terms or conditions of this Agreement or any IO including, as determined by Service Provider in its reasonable discretion, any lead with TCPA Consent that is not fully documented as required hereunder using either Jornaya’s LeadID or Active Prospect’s TrustedForm; and (iii) a “Fraudulent Lead” means a lead that is the product of directly incentivizing a user to provide TCPA Consent, fraud or manipulation of information on the part of Client. Any Qualified Leads or Call Transfers not scrubbed/removed within ten (10) days following the last day of the month in which applicable actions occur shall be deemed billable for the applicable Service Month.
9.3 Books and Records; Audit Rights. Each Party shall maintain accurate books and records regarding the determination of the payments due hereunder. Each Party shall have the right to audit such books and records of the other Party at its own expense upon reasonable prior notice no more than once per year at the audited Party’s offices. If an audit reveals an underpayment owed to Service Provider, Client shall pay such amount within fifteen (15) days. If the underreporting exceeds ten percent (10%) of the correct amount, Client shall pay Service Provider’s out of pocket audit costs.
9.4 Taxes. The Fees owed to Service Provider are net of any sales or use, excise or withholding taxes (other than taxes determined by Service Provider’s income or franchise taxes or similar taxes). If Service Provider reasonably determines that all or any portion of the Fees are subject to sales or use taxes in any state where Service Provider determines it has sales tax nexus, the Parties will mutually agree on the taxable basis of and the amount such taxes owed and will report, collect and pay the required taxes to the appropriate taxing authority or Client shall provide a properly completed resale certificate or other documents evidencing the availability of an exemption from the payment of such taxes. If Client reports and remits the taxes, Client shall provide proof thereof and copies of all reports to Service Provider.
9.5 Chargebacks. If Client materially varies from its method of securing TCPA Consent that was approved by Service Provider following an audit, such as buying contact data from third parties or failing to obtain valid proof of TCPA Consent or using deceptive Creatives to generate Inbound Calls, Service Provider may refuse to pay for and/or chargeback any amounts paid to Client attributable to leads generated in connection with such unapproved practices.
10. Term and Termination.
10.1 The term of this Agreement will commence when the first IO between the Parties takes effect, and will continue, unless earlier terminated, until the expiration of the last to expire IO between the Parties (“Term”). Either Party may terminate this Agreement, upon two (2) business days’ prior written notice to the other Party (with confirmed email sufficing). Termination of this Agreement shall not relieve Service Provider of any remaining payment obligations due to Client not otherwise subject to a good faith dispute.
10.2 If a Party receives a third-party complaint or reasonably believes the other Party’s actions, advertisements and/or business operations expose it to risk or damage to its business reputation, that Party may suspend this Agreement immediately until such situation can be resolved to its reasonable satisfaction.
10.3 All terms and conditions of this Agreement that, by their nature, are intended to survive the expiration or termination of this Agreement, shall survive, regardless of the reason of such expiration or termination.
11. Confidentiality.
12.1 For purposes of this Agreement, “Confidential Information” means any non-public or proprietary information (written, verbal or otherwise) provided by one Party to the other during the Term of this Agreement, including information concerning, the Client Sites, the Users, the Client’s or Service Provider’s products and/or services, leads, financial affairs, partnerships, marketing plans or strategies, current or future business opportunities, technology, websites, customer relationships, and contact lists. Confidential Information shall also include any other proprietary business information, which derives actual or potential economic value from not being generally known, which is either clearly identified as confidential or, which under the circumstances surrounding disclosure ought to be treated as confidential, protected information by a reasonable person, including the terms of this Agreement. Neither Party shall at any time disclose any Confidential Information of the other Party and/or the terms of this Agreement to any third party except to professional advisors of either Party or as otherwise authorized under this Agreement or as may be required by applicable law or to enforce this Agreement.
12.2 The foregoing confidentiality provisions shall not apply where the receiving Party can demonstrate that the information: (i) was previously known to the receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the receiving Party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; (iv) was disclosed pursuant to judicial order, requirement or request of a governmental agency or by operation of law; or (v) was disclosed to a third party as expressly authorized by this Agreement. The Parties hereby acknowledge that either Party may disclose this Agreement to the extent necessary to comply with filing requirements, if any, of the Securities and Exchange Commission.
12.3 The Parties agree that monetary damages for breach of this Section 8 may not be adequate and that the non-breaching Party shall be further entitled to injunctive relief, including specific performance, without the requirement to post a bond or other form of security.
13. FTC Order. Client undertakes to perform the Services described herein in compliance with applicable Laws and the Stipulated Order for Permanent Injunction, Monetary Judgment, Civil Penalty Judgment, and Other Relief dated July17, 2023 and entered into by Fluent and the Federal Trade Commission (https://www.dropbox.com/ scl/fi/bm0osemuu9q6gctk6n2x1/FTC-Consent-Order. pdf?rlkey=iq11kuh7sggqheaog1yeg6yla&dl=0))(“FTC Order“), and all subsequent or related official materials, regulations, laws, judgements or orders. By its execution of this Agreement, Client acknowledges and agrees (i) to having received a copy of the FTC Order; and (ii) that engaging in acts or practices prohibited by the FTC Order directly or failing to police the acts or practices prohibited by the FTC Order by its subcontractors will result in disciplinary action, which may include immediate termination and forfeiture of all monies owed to Client.
14. Representations, Warranties and Covenants.
14.1 By Both Parties. Each Party represents and warrants to the other that (i) it has full power and authority to enter into this Agreement; and (ii) the execution, delivery and performance by such Party of this Agreement will not breach any agreement by which such Party is bound, or violate Applicable Laws, or violate the intellectual property rights of any third party.
14.2 Client Representations and Warranties. Client represents, warrants and covenants to Service Provider that: (i) the Services, Client Sites, Client call centers and the operations thereof, as well as the Creative and means used to acquire TCPA Consent and Inbound Calls, comply with Applicable Laws and do not use deceptive or illegal acts or practices or infringe upon the third party intellectual property rights of any third party; (ii) the Users have provided valid TCPA Consent on behalf of Seller(s) to receive text messages and/or telemarketing calls (including autodialed calls) from the Sellers as contemplated by this Agreement; (iii) the Users were acquired and/or contacted in compliance with Applicable Laws and none of the Users were obtained from third parties or through harvesting and/or any other deceptive or illegal acts or practices; and (iv) the Client Sites and Creatives provided to Service Provider pursuant to Section 4.7 have not been altered in a way that adversely impacts the legality of a Campaign
14.3 Service Provider’s Representations, Warranties and Covenants. Service Provider represents, warrants and covenants to Client that: (i) Service Provider will use the Qualified Leads and process Call Transfers in compliance with Applicable Laws; and (ii) Service Provider shall not use, share, or disclose any Qualified Leads, Call Transfers or the associated data that are scrubbed or otherwise rejected.
14.4 NO OTHER REPRESENTATIONS AND WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED. ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BOTH PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES WHICH COULD BE IMPLIED IN CONTRACT, IN LAW OR IN EQUITY, INCLUDING TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY WARRANTY REGARDING CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY OR PERFORMANCE.
15. Indemnification.
15.1 Each Party (“Indemnifying Party“) hereby agrees to indemnify, defend and hold harmless the other Party, its parent and subsidiary companies, and their respective officers, agents, directors, employees, contractors, and authorized representatives (collectively, “Indemnified Party“) from and against any claims, costs, losses, liabilities and expenses, including court costs, reasonable expenses, and reasonable outside attorneys’ fees (“Losses“) incurred by reason of any third party claim arising out of or in connection with the Indemnifying Party’s breach of any duty, representation, warranty or covenant hereunder.
15.2 The Party seeking indemnification (“Indemnified Party“) shall promptly notify the Indemnifying Party in writing of all such claims and shall accommodate the Indemnifying Party’s reasonable requests for cooperation and information. The Indemnified Party shall agree to Indemnifying Party’s sole control over the defense and any settlement of such claims; provided, however, that the Indemnifying Party may not agree to any settlement that could adversely affect the rights or interest of the Indemnified Party or does not include a full release of the Indemnified Party without their express written consent. The Indemnified Party may engage counsel of its own choosing and at its expense to monitor and assist in the defense of any claim. The foregoing indemnity obligations may not apply in the event, and to the extent, that such claim is based on any action or omission of the Indemnified Party.
15.3 Without limiting the foregoing, Client agrees to indemnify, defend and hold harmless Service Provider, its subsidiaries, advertisers, shareholders, agents, contractors, officers, directors and employees from and against any Losses arising out of or relating to any: (i) claim related to the Services, generation of Qualified Leads, Call Transfer and/or Client’s marketing practices associated therewith; (ii) claim associated with the Client’s Creative, Client Sites and/or call centers; and/or (iii) act or omission of any of its third party service providers and affiliates.
16. Limitation of Liability. EXCLUDING THE PARTIES’ OBLIGATIONS UNDER SECTION 15 HEREUNDER WHICH RESULT IN ACTUAL, OUT-OF-POCKET EXPENSES AND/OR COSTS TO THE INDEMNIFIED PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE, INCURRED BY THE OTHER PARTY ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, OTHER THAN FOR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT, SERVICE PROVIDER’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE FEES PAID TO CLIENT BY SERVICE PROVIDER PURSUANT TO THIS AGREEMENT DURING THE PRIOR TWELVE (12) MONTH PERIOD. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL SERVICE PROVIDER BE RESPONSIBLE OR LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY BUYER(S) UNDER ANY CIRCUMSTANCES. ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE ASSERTED WITHIN ONE (1) YEAR OF THE DATE UPON WHICH SUCH CAUSE OF ACTION ACCRUED, OR THE DATE UPON WHICH THE COMPLAINING PARTY SHOULD HAVE REASONABLY DISCOVERED THE EXISTENCE OF SUCH CAUSE OF ACTION, WHICHEVER IS LATER.
17. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed received: (a) if given by facsimile transmission, when transmitted to the facsimile number specified herein and machine generated confirmation of receipt is received; (b) if by email, when transmitted to the email address specified herein and machine generated confirmation of delivery or receipt is received; or (c) if by overnight courier service or registered or certified mail or personal delivery, when received; provided that if the date of receipt hereunder is not a business day in the place of receipt, the notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt to the following addresses, emails and/or facsimile numbers (or at such other addresses, emails and/or facsimile numbers for a Party as shall be specified by like notice):
If to Service Provider:
300 Vesey Street, 9th Floor
New York, NY 10282
Attention: Daniel J Barsky, General Counsel
Email: legalnotices@fluentco.com
If to Client, at the name, address and contact information specified in the IO.
18. Miscellaneous.
18.1 Waiver. The failure of either Party to insist upon or enforce performance by the other Party shall not constitute waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and shall remain in full force and effect.
18.2 Relationship of the Parties. The Parties to the Agreement are independent contractors. Neither Party is or shall be deemed an agent, representative, partner or employee of the other Party. Neither Party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party in any manner whatsoever. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
18.3 Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
18.4 Construction; Severability. Each Party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further, all provisions are inserted conditionally on their being valid in law. If any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
18.5 Remedies. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
18.6 Entire Agreement. This Agreement (including the IOs) constitutes the entire and only agreement and supersedes the Consented User Purchase Agreement and any prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein.
18.7 Amendment. Service Provider may modify this Agreement by posting a new version online. If a Client does not agree to such changes, Client may cease providing Services to Service Provider. Client may request that this Agreement as applied to Client be modified; provided, however, that any amendment will be effective only pursuant to written amendment executed by both Parties.
18.8 Assignment. Neither Party to the Agreement shall sell, transfer, or assign the Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of the other Party. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest of such Party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning Party of more than seventy-five percent (75%) of the outstanding stock of the assigning Party. Subject to the foregoing, the Agreement will be fully binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns.
18.9 Headings. The captions and headings used in the Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement.
18.10 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. Each Party agrees that this Agreement, the IO(s) and any other documents to be delivered in connection herewith may be executed on facsimile copies in PDF format which shall be deemed to be, and utilized in all respects as, an original, wet-inked manually executed document and shall be deemed to be original signatures when transmitted to the other Party electronically.
18.11 Jurisdiction and Venue. Except to the extent necessary to confer jurisdiction upon a court to award injunctive relief reasonably requested by one of the Parties, if there is any legal action between the Parties relating to this Agreement, the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in New York County, New York.
18.12 Contract Interpretation. For purposes of contract interpretation, including resolution of any ambiguity, the Parties acknowledge that this Agreement was prepared jointly by their respective attorneys and therefore the terms of the Agreement should not be strictly construed against either Party.