Airo Marketing Lead Seller Agreement

This Lead Seller Agreement (“Agreement”) is entered into effective as of March 14th, 2018 (“Effective Date”) by and between Airo Marketing Inc. d/b/a Airo Marketing (“Airo Marketing”), a Minnesota corporation with offices located at 506 Kenny Rd, Suite 200, Saint Paul, MN 55130, and “Lead Seller”.  Airo Marketing and Lead Seller may be individually referred to as “Party” or collectively as “Parties”.

Subject to the terms and conditions of this Agreement, Airo Marketing hereby grants Lead Seller a limited, non-exclusive license to use the Airo Marketing Lead Marketplace system (“System”) for the sale of data or information collected through an online form and generated through online marketing activities that conform to the guidelines included herein.

NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged; the parties hereby agree as follows:

  1. Defined Terms. The following capitalized terms shall have the meanings set forth below:
    1. “Lead” means the data collected from a consumer user of the Lead Seller Website who completes and submits Lead Contact Information and a request to be matched to a service provider.
    2. “Lead Buyer” means a purchaser of a Lead from Airo Marketing, including a Airo Marketing Agent or a wholesale buyer.
    3. “Lead Contact Information” means (a) first and last name, (b) address, including zip code,

(c) email address, and (d) phone number.

    1. “Matched Lead” means a Lead that is successfully matched by Airo Marketing to one or more Lead Buyer(s).
    2. “Lead Seller Agent” means the service provider client of Lead Seller.
    3. “Lead Seller Website” means _ .
    4. “Airo Marketing Agent” means the service provider clients of Airo Marketing.
  1. Lead Generation Guidelines. Leads must have been generated from inquiries from individuals (in their personal capacity or on behalf of a company) who complete an online form hosted by Lead Seller that captures contact information and details about the information being requested by the individual. Leads may only be provided through the System if they meet all of the following guidelines:
    1. Delivery. The System accommodates Leads that have specific data requirements that are communicated through the technical specification documents (“Tech Specs”). Lead Seller agrees to deliver Leads to Airo Marketing in accordance with the Tech Specs provided by Airo Marketing.
    2. Completeness. Leads must include all required fields as specified by the Tech Specs and Lead Seller may not use default values for any of those required fields.
    3. Data Integrity. Lead Seller must ensure that the Leads include only information that has been input by the individual and must make commercially reasonable efforts to ensure that provided information is accurate. A Lead may be rejected by Airo Marketing based on: (i) Airo Marketing’s inability to verify the accuracy of certain consumer information, such as the name and phone number; (ii) the Lead is completed by or is for an individual under 18 years of age; (iii) the lead is outside of the geography that is requested by Airo Marketing.
    4. Fraud. The Lead and corresponding contact information are not  to be phony, fraudulent or generated by fraudulent means.
    5. Timestamp. Lead Seller must provide accurate timestamp information that is required to determine the age of the Lead and, to the extent the Lead is a non-exclusive Lead (as specified by Lead Seller), Lead Seller must provide accurate information regarding the number of times the Lead has been sold previously and information that will allow Airo Marketing to avoid selling the Lead to an end-user buyer who have previously received the Lead.
    6. Duplication. Duplicate Leads may not be sent to Airo Marketing within thirty (30) days of each other and will be rejected by the System. To the extent that Lead Seller has a high percentage of duplicates, Airo Marketing reserves the right to extend the duplicate review period for whatever period Airo Marketing deems necessary. A “Duplicate Lead” means a Lead that is generated by the same individual who is requesting the same or similar service.
    7. Incentivized Leads. Lead Seller may not provide Leads to the System that have been generated by misleading the consumer or by providing the consumer a reason to believe that they will receive a prize, gift, payment or pecuniary benefit of any kind in exchange for completing a lead form and generating a Lead.
    8. Lead data will include (where required by the Tech Specs) all opt-in information as set forth elsewhere herein, including, without limitation, name, telephone number, email address source URL, sign-up IP address, sign-up time/date stamp, confirmation of express consent to receiving specific types of marketing messages (including TCPA consents, where applicable), the privacy policy in place at the time of the opt-in, and (where applicable) certain profile information specified by Airo Marketing (all such information shall be valid, accurate, unaltered, true and correct in all respects).
    9. Leads will be collected from individual consumers that have provided prior express written consent required by law or regulation (including, but not limited to, Telephone Consumer Protection Act, 42 USC 227 and 47 CFR 64.200 and Do Not Call List requirements) so that Airo Marketing and/or Lead Buyer, Lead Seller Agent, Airo Marketing Agent may call any telephone or mobile phone numbers contained within Lead data for the purpose of providing quotes, including, but not limited to, via automatic telephone dialing system or pre-recorded voice message, as applicable.
    10. Compliance with Federal, State and Local Laws and Licensing Requirements. Lead Seller represents and warrants that: (i) the execution, delivery and performance by Lead Seller and/or its affiliates or partners of this Agreement will not knowingly violate any law, statute or other governmental regulation including, without limitation, the Can-Spam Act of 2003, the Do Not Call Implementation Act, The Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telephone Consumer Protection Act, and any other applicable laws and the rules promulgated thereunder; (ii) the acquisition, compilation, collection and/or prior use of the Leads did not and does not violate any law or laws, including without limitation the Telephone Consumer Protection Act, Can-Spam Act of 2003 or the Children’s Online Privacy and Protection Act; (iii) the Leads supplied via the System are owned or validly licensed by Lead Seller; (iv) the Leads consist of records of persons who have expressly indicated permission to receive third party commercial email advertising messages and/or who have expressly indicated permission to sell their information to third parties, without subsequently rescinding such permission by virtue of submitting an opt-out or removal request; (v) the privacy polic(ies) under which the information in the Leads was collected expressly indicated at the time the information was collected thereunder that the individual’s information, including without limitation his/her personally identifiable information and specifically the phone number, email address and/or direct mail address, would be sold, licensed, rented, leased and/or shared in some capacity with third parties for the purpose of third-party marketing and solicitation; (vi) the Leads will not violate the proprietary or intellectual property rights of any third parties; (vii) Lead Seller has complied with all applicable local, state, and federal licensing requirements.
    11. Phone Leads. Leads generated by phone are expressly prohibited. This includes Leads generated from a call center or where the origination of the Lead involved placing a phone call to the consumer prior to the Lead being submitted to the System. The prohibition against Leads generated by phone shall also not include those Leads verified by a call center or where the validation or verification of the Lead involved placing a phone call to the consumer prior to the Lead being submitted to the System.
    12. Links and Landing Pages. Prior to submitting any Leads to the System under this Agreement, Lead Seller shall submit to Airo Marketing any uniform resource locators and any lead forms (“Generation Materials”) Lead Seller will use to generate and submit Leads to Airo Marketing. Lead Seller shall not be able to submit Leads to the System until Airo Marketing approves in writing the Generation Materials. In addition, Lead Seller shall not submit Leads to the System and shall seek written approval should there be changes or material modifications to the Generation Materials.
    13. Matched Leads (and their corresponding data) sold to the System become the property of Airo Marketing and Lead Seller agrees not to call, email or otherwise advertise to the Lead within 30 days of the lead been accepted by Airo Marketing.

 

  1. Enforcement. Failure to follow any of the guidelines described in Section 2 may, at the sole discretion of Airo Marketing, result in any of the following:
    1. Immediate suspension of Lead Seller’s account;
    2. Immediate termination of Lead Seller’s account;
    3. All other remedies under law available to Airo Marketing.

 

  1. Payments. Lead Seller will receive payment from Airo Marketing for all Matched Leads that meet the Lead Generation Guidelines defined herein. Lead Seller will be paid within fifteen (15) days following the date that invoice is received from Lead Seller for Leads that were presented in the System in the preceding month. Airo Marketing will provide a report that will display Lead Seller’s earnings and other valuable information associated with Lead Seller’s Leads. To ensure proper and timely payment, Lead Seller agrees to maintain with Airo Marketing an accurate address, other contact information, and payment information at all times. Final number will be confirmed within 10 days following a month end. Airo Marketing will provide Lead Seller a report containing returns. The report will at a minimum contain timestamp, email address and return reason.

 

  1. Confidentiality. During the term of this Agreement and for six (6) months thereafter, except (i) as may be required by law, regulation, or court order; (ii) on a need to know basis to employees, consultants, counsel, accountants, investors or other professional advisers of the Parties; (iii) in connection with required tax and accounting disclosures; and (iv) as specified below and under Publicity

 

    1. Non-Disclosure of Confidential Information. The Parties agree (i) not to disclose to any third party or use any Confidential Information disclosed by the other Party except as expressly permitted in this Agreement and (ii) to take all reasonable measures to maintain the confidentiality of all Confidential Information in Party’s possession or control.
    2. Confidential Information. For the purposes of this Agreement, “Confidential Information” means information about a Party (or its Lead Sellers’ or customers’) business or activities that is proprietary and confidential, which shall include business, financial, technical and other information which is marked as “confidential” or “proprietary” (or similarly), received from a Party related to Agreement, or ought in good faith to be treated as confidential.
    3. Non-Confidential Information. Confidential Information will not include information that (i) is in or enters into public domain without breach of this Agreement; (ii) Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) Party knew prior to receiving such information from other Party or develops independently.

 

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

 

 

  • Term and Termination

 

    1. Term. This Agreement shall commence on the Effective Date and continue in perpetuity until terminated.
    2. Termination. Either of the Parties may terminate this Agreement, with or without cause, immediately upon delivery of written notice to the other Party as follows: to Airo Marketing billing@Airoinc.com or to Lead Seller at the email address or addresses listed in Lead Seller’s account at the time of termination.
    3. Rights Upon Termination. Except as expressly provided, upon the termination of this Agreement, all rights, duties and obligations of the Parties hereunder shall terminate, except to the extent that either party violated the Agreement and claims related to that violation remain intact. In addition, the following sections shall survive post-termination: Compliance with Federal, State and Local Laws and Licensing Requirements, Enforcement, Confidentiality, Indemnification and Limitation of Liability.

 

  1. Indemnification. Lead Seller will defend, indemnify, and hold harmless Airo Marketing and its advertisers, affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses, including reasonable attorney’s fees and expenses (collectively “Claims”) arising in whole or in part from any breach of any of the terms or conditions contained in this Agreement, including but not limited to violations of applicable law (including, without limitation, the CAN-SPAM Act, the Telephone Consumer Protection Act, 42 USC 227 and 47 CFR 64.200, applicable state Do Not Call List requirements and/or failure to obtain proper prior express written consents from individuals for use of Leads as contemplated by this Agreement) or any applicable insertion orders. This includes disputed claims that would constitute a breach or violation if meritorious. Airo Marketing reserves the right, at its own or at Lead Seller’s expense to be determined at Airo Marketing’s sole discretion, to assume the exclusive defense and control of any Claim. Alternatively, Airo Marketing may, at its sole discretion, tender the matter to Lead Seller’s or Lead Seller’s insurer’s counsel, if any, for defense of any Claim. Lead Seller hereby acknowledges that advertisers are intended third party beneficiaries of the foregoing indemnification obligation.

 

 

  • Limitation of Liability

 

 

  1. EACH PARTY REPRESENTS AND WARRANTS IT HAS FULL RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO GRANT THE RIGHTS AND RESPONSIBILITIES CONTAINED HEREIN.
  2. EXCEPTING Airo Marketing’s CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS OR AS OTHERWISE PROVIDED HEREIN, UNDER NO CIRCUMSTANCES SHALL EACH PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, COSTS OF DELAY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
  3. Airo Marketing DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING ANY REGARDING MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, SUITABILITY, COMPLIANCE WITH LAWS, QUALITY, OR OTHERWISE, WITH RESPECT TO THE Airo Marketing WEB SITE AND/OR THE SYSTEM.
  4. EXCEPTING Airo Marketing’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EACH PARTY’S TOTAL LIABILITY, REGARDLESS OF THE CAUSE, OR ACTION, EXCEED THE AMOUNT PAID BY Airo Marketing TO LEAD SELLER IN THE MOST RECENT THREE MONTHS OF THE AGREEMENT PRIOR TO THE END OF THE AGREEMENT OR THE INITIATION OF ANY CAUSE OF ACTION.
  5. THE PARTIES ACKNOWLEDGE THAT NEITHER WOULD HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS CONTAINED IN THIS SECTION
  6. No Joint Venture. Nothing herein contained shall be construed to place the Parties in a relationship of joint ventures, and neither Party shall have the power to obligate or bind the other in any manner whatsoever. The Parties enter into this Agreement as independent contractors.
  7. Severability & Validity. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, in whole or in part
    1. The validity, legality and enforceability of any of the remaining provisions or portions of this Agreement shall not in any way be affected or impaired thereby and this Agreement shall nevertheless be binding between the Parties.
    2. Such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect.
  8. Assignment. Lead Seller may not assign this Agreement, in whole or in part, without Airo Marketing’s prior written consent, and any attempted assignment without such consent shall be null and void. Notwithstanding the foregoing, consent will not be required for assignment or transfer made by operation of law or when an entity acquires substantially all of Lead Seller’s stock, assets or business, in which case the assignment occurs automatically upon the consummation of the sale. Airo Marketing may freely assign or transfer this Agreement at any time and will provide Lead Seller with written notice of that assignment or transfer to the email address associated with Lead Seller’s account at that time.
  9. No Waiver or Modification. No term or provision hereof will be deemed waived or modified, and no variation of terms or provisions hereof shall be deemed consented to, except as expressly provided herein, unless such waiver or consent is in writing signed by the Party against whom such waiver or consent is sought to be enforced. Any delay, waiver or omission by either Party to exercise any right or power arising from breach or default of this Agreement by the other Party shall not be construed to be a waiver by that Party of any subsequent breach or default.
  10. Headings. The descriptive headings in this Agreement are inserted for convenience to navigate and reference provisions only and except to reference provisions do not constitute a part of this Agreement.
  11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Minnesota, without reference to conflicts of law rules. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located in Ramsey County, Minnesota. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The prevailing party in any litigation shall be entitled to seek attorney’s fees.

 

  1. Entire Agreement and Modifications. This Agreement together with the Site Terms of Use is the entire, complete and final agreement between the Parties and supersedes all prior and contemporaneous agreements. Airo Marketing may modify this Agreement at any time and will provide Lead Seller with written notice of that modification to the email address associated with Lead Seller’s account at that time. Lead Seller’s continued use of the Services and/or System after notice of such modifications means that Lead Seller agrees to the new terms, even if Lead Seller has not reviewed the changes.