LEAD PURCHASE “PUBLISHER” AGREEMENT
This Lead Purchase “Publisher” Agreement (the “Agreement“) is entered into the day indicated in the Publisher agreement (the “Vendor“) with its address as indicated on the Publisher Agreement
Consumer Genius Inc. (the “Company“) and together with the Vendor (the “Parties“), with its registered address at PO Box 90022 RPO Sierra Springs, Airdrie, AB T4B 0A2.
WHEREAS the Company operates a variety of platforms, websites and information funnels and is in the business of generating, acquiring and selling Leads (as hereinafter defined) containing information relating to Consumers (as hereinafter defined) who are looking for financial services, home services, insurance services, medical services, and other services within a Company Vertical (as hereinafter defined);
WHEREAS the Vendor possesses or will be receiving or facilitating the collection of certain information relating to Consumers (as hereinafter defined), including but not limited to their names, addresses, personal information and contact information;
AND WHEREAS the Company wishes to retain the services of the Vendor as a publisher and supplier of Leads.
NOW THEREFORE in consideration of the foregoing and the mutual agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
In this Agreement and the schedules hereto capitalized terms shall have the following meanings:
- “PA” or “Publisher Agreement” means the Lead Purchase “Publisher” Agreement together with these Terms and Conditions, collectively the “Agreement;
- “Bad Lead” has the meaning as described in Section 4 as supplemented by the additional criteria described in Schedule “B” of the PA;
- “Business” means the sale of Leads relating to the Company Verticals;
- “Client” means any third-party who the Company has agreed to acquire Leads on behalf of;
- “Company” has the meaning as first described on the cover page of this Agreement;
- “Company Verticals” means the goods or services provided, brokered or arranged by the Company directly or on behalf of a Client, across various categories, including financial services, home services, insurance services and medical services;
- “Confidential Information” has the meaning described in Section 19;
- “Consumer” means any person who is the subject of a Lead;
- “Consumer Information” means any and all of the information obtained by the Vendor or the Company relating to a Consumer including a Consumer’s name, address, non-public personal information and contact information;
- “Conversion Payout Event” means any click-through, sale, registration, impression, conversion, approval, pre-approval, funding, closing or other desired outcome as identified in the Pricing List attached to the Agreement as Schedule “A”;
- “Co-Registration Offers” means and refers to arrangements between companies to collect user information and usually includes a separate check-box on an online signup form where the user can opt-in to receive messages from a third-party;
- “Incentivized Offer” means an offer from the Vendor which promises the Consumer some form of compensation, benefit or a reward for completing a specific action or providing Consumer Information;
- “Lead” means:
- Any Consumer directed to the Company’s specified online platform, website or destination and that results in the Company’s collection of Consumer Information and/or a Conversion Payout Event, as applicable; or
- The information set obtained as a result of an individual completing a borrower flow, a questionnaire or some other type of data entry on the online platform operated by the Vendor or one of the Vendor’s subsidiaries, partner, or affiliate sites, which the Vendor subsequently sends to the Company and/or results in a Conversion Payout Event, as applicable;
- “Lead Order” has the meaning described in Section 3(a);
- “Lead Order Number” has the meaning described in Section 3(a);
- “Privacy and Data Protection Requirements” means all applicable federal and provincial laws and regulations relating to the collection, retention, use, processing, disclosure, or protection of personal information, and all cyber incident, information security and data breach notification and record-keeping requirements including, where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction;
- “Qualified Lead” has the meaning as described in Schedule “B” of the Agreement and which is not otherwise a Bad Lead;
- “Third-party Advertiser” means a Client who has provided the Company with marketing material for the purpose of the Vendor using such marketing material in connection with a Campaign;
- “Term” means the term of this Agreement in accordance with Section 16; and
- “Vendor” has the meaning as first described on the cover page of this Agreement.
Purchase and Sale of Leads
- During the Agreement’s Term, the Vendor agrees to sell Leads to the Company, and the Company agrees to buy Leads from the Vendor.
- The Vendor shall ensure that all duties, responsibilities and services to be performed by the Vendor hereunder are performed in a professional and business-like manner.
- On or before the first day of each month the Company shall provide notice to the Vendor with respect to the number of Leads the Company desires to be sent from the Vendor (such notice being a “Lead Order“). Each Lead Order shall provide the category of Leads and the number of Leads that the Company desires to receive, if any (a “Lead Order Number”), including the geographic region(s) in which the Consumer(s) reside for which the Company desires to obtain Leads. If the Company does not provide a Lead Order each month, the Vendor shall continue to provide, and the Company shall continue to pay for, Leads, in the quantity and categories set forth in the Company’s most recently provided Lead Order.
- The Company acknowledges and agrees that the Lead Order Number reflected in a Lead Order represents only the maximum amount of Leads for which the Company is willing to pay. The Company further acknowledges, that the Vendor may be unable to accommodate such Lead Order Number and that the Vendor shall be obligated to use its best efforts to provide the Lead Order Number specified in the Lead Order and in the requested geographic area and any amendment to such Lead Order. In the event that the Company amends a Lead Order to decrease the Lead Order Number desired for purchase, the Company shall not be obligated to pay for any Leads deducted from the original Lead Order Number, to the extent such Leads have not been previously delivered to the Company prior to the date on which the Company delivered such amended Lead Order to the Vendor.
- All Leads provided to the Company shall: (i) in the case of Leads under Section 1(n)(ii), be provided immediately in real time (and without delay or modification) following the generation of the Lead; (ii) be original Leads which have not been previously sold to any other party, do not appear on aged or previous Lead lists or have otherwise been recycled; (iii) not have been obtained through the use of sweepstakes, inducement or “clickbait” type marketing; and (iv) have been obtained in compliance with any applicable advertising policies of the Company;
- In the event that the Vendor has, due to inadvertence or for any other reason, provided the Company with a number of Leads which is in excess of the Lead Order Number (the “Excess Leads“), the Company shall be entitled to own and make use of such Excess Leads, but shall not be required to pay the Vendor for any Leads received in excess of the Lead Order Number.
- The Company shall endeavour to review and reconcile all Leads provided by the Vendor: (i) within one week following delivery of any Leads delivered pursuant to a weekly order; and (ii) within one month following delivery of any Leads delivered pursuant to a monthly order. As part of such review and reconciliation, the Company shall identify any Leads which have been previously delivered which are “Bad Leads” (as hereinafter defined in Section 4). For clarity, the judgement and determination of whether a Lead is a “Bad Lead, will be at the sole discretion, sole power and sole authority of the Company based on the information available to it at the time of determination. The Vendor agrees to have no role in the determination of a Bad Lead, unless requested to do so by the Company, in which case Vendor agrees to comply fully with the Company, its advisors, counsel, auditors, developers and management team, in order to investigate the reasoning, source and data analysis of such Bad Lead. For greater certainty, any failure of the Company to reconcile a Bad Lead within the time frames described above shall not constitute a breach of this Agreement.
- In the event that the Vendor has delivered a Bad Lead under this Agreement, the Company shall not be required to pay for any such Bad Lead and, upon notice from the Company of such Bad Lead or deficiency, the Vendor shall, at the election of the Company in its full discretion, either: (i) immediately replace such Bad Lead with an alternate Lead that meets the required terms or specifications; (ii) immediately refund to the Company the full amount of any consideration previously paid to the Vendor in respect of such Bad Lead; or (iii) remove any amount for such Bad Lead from the invoice where such Bad Lead appears and re-issue said invoice, if required.
- For the purposes of this Agreement, each of the following shall be considered a Bad Lead:
- any Lead which does not meet the description of a Qualified Lead as contained in Schedule “B” attached hereto or contained in the Publisher Agreement;
- duplicate Leads including, but not limited to, any Lead that matches a Lead (based on any Consumer’s personal information or otherwise) previously purchased by the Company or already available in the Company’s or Clients database;
- any Lead that contains data which was not entered directly by the Consumer;
- any Lead that was altered, modified or changed in any way by the Vendor or a third-party, either manually or through the use of any type of computer program or system, including, but not limited to artificial intelligence programs, robots, automated robots or algorithms;
- any Lead that does not meet the basic required criteria set out in the applicable Lead Order. Where the terms of the Lead Order are inconsistent with any provision of this Agreement or any schedule attached hereto, this Agreement or any schedule attached hereto or within the PA will prevail;
- any Lead that is acquired from an Incentivized Offer or a Co-Registration Offer; or
- any Lead that was obtained by the Vendor in violation of any applicable laws or regulations.
- In addition to the foregoing, any Lead that meets the further criteria of a Bad Lead described in Schedule “B”, attached hereto or contained in the Publisher Agreement, will also be qualify as a Bad Lead under this Agreement.
- For the purposes of this Agreement, each of the following shall be considered a Bad Lead:
Use of Leads
- The Vendor acknowledges and agrees that the Company may, without seeking the consent of the Vendor, use the Leads purchased from the Vendor for the purpose of the Company’s Business including selling such Leads to a Client and/or providing LAF Verticals to the Consumer.
- The Vendor furthermore agrees and explicitly acknowledges that at the sole discretion of the Company, the Company has the right to bring on additional publishers, sub-publishers, affiliates, sub-affiliates, media buyers, traffic managers and sub-traffic managers, internal or external, if and when the Company decides to do so. The Vendor acknowledges and agrees that all such decisions relating to the structure and operations of the Company’s traffic department or division, will be at the sole and exclusive discretion of the Company.
- This Agreement is non-exclusive and does not in any way limit the Company’s ability or right to contract with any other person for the provision, sale or receipt of Leads or services similar or identical to the services described in this Agreement.
Campaigns and Marketing
- The Company may launch Campaigns for which the marketing materials will be located on the Company’s proprietary technology platform (the “Company Platform”) for access by the Vendor. For each Campaign, the Company Platform will include links containing unique Vendor-specific hyperlinks from which the Vendor’s Campaign related performance, including Leads and Conversion Payout Events, will be tracked.
- The Company may make available to the Vendor certain marketing pieces, models or examples for use in the Vendor’s marketing. The Company may provide examples, models or guidelines covering various creative materials, information, advertising, text links and banner advertisements (collectively, the “Content”) to the Vendor for the Vendor’s use and publication, subject to the limitations set forth by the provisions of this Agreement. The Vendor may utilize the Content during the Campaign, including the Vendor’s creation of marketing materials, advertising and other creative or promotional material.
- Unless otherwise stated in writing by the Company in a Lead Order, each piece of Content made available to the Vendor must include, in unaltered form, the Company’s special transaction tracking codes as embedded in all Content (the “Transaction Tracking Codes”), where applicable. Vendor shall not knowingly, modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes, other technology, or methodology required or made available by the Company to be used in connection with any and all Content.
- All Content supplied from time to time by the Company for the Vendor’s performance of obligations hereunder will remain the property of the Company, or its Third-party Advertisers, as applicable. Vendor will comply with all requirements communicated to it by the Company in association with the Vendor’s use of the Content, as may be amended from time to time.
- Vendor agrees that it shall not alter or edit, in any manner, any piece of Content without prior written approval from the Company. Vendor shall have no rights to ownership of any Content; nor shall the Vendor disburse, duplicate or distribute it to any affiliate, affiliate network or any other third-party. If instructed to do so by the Company, Vendor shall immediately destroy and discontinue the use of any Content or other materials provided by the Company, including marketing materials, advertising and other creative or promotional material created by the Vendor for use during a campaign. The Company, in its sole discretion, may change or revise the Content that is made available hereunder from time to time and the Vendor agrees to use only the most recent version of the Content that is provided by the Company. Vendor shall notify the Company when it is in receipt of any changed Content within two (2) business days of its receipt.
- At the outset of any Campaign, the Vendor must ensure that it receives, reviews and is in compliance with the most recently available and applicable public suppression list(s), as applicable and any suppression list as provided by the Company.
Vendor Advertising and Grant of License
- The Vendor acquires Leads through a variety of advertising methods and promotional literature. Prior to submitting any Lead Order to the Vendor, the Company shall be entitled to review the Vendor’s advertising methods and promotional literature for compliance with all applicable rules and regulations, including but not limited to Privacy and Data Protection Requirements. The Vendor shall take all reasonable steps to facilitate the Company’s review.
- In the event that any of Vendor’s advertising or promotional literature relating to the Company is deemed, in the sole and exclusive discretion of the Company, to not comply with any applicable rules or regulations, including but not limited to Privacy and Data Protection Requirements, the Company may at its discretion, require Vendor to:
- immediately cease using any and all intellectual property of the Company;
- take immediate steps to rectify any non-compliance with any applicable rules and regulations; and
- re-submit all advertising methods and promotional materials for the Company’s review as soon as reasonably practicable
prior to engaging in any further Services in connection with this Agreement.
- The Company hereby grants the Vendor a limited, non-exclusive, revocable, license to use the Company’s name and logo, including the names and logos of any affiliated entities or subsidiaries (as applicable) and any registered trademarks, trade names and brand names associated with the Company, including any affiliated entities or subsidiaries (as applicable), for the sole purpose of creating, using and publishing marketing materials and as otherwise permitted in accordance with this Agreement.
- In addition to its other obligations hereunder, the Vendor shall:
- not sell or sublicense any of the intellectual property of the Company, its affiliated entities or its subsidiaries, for which it has not been provided a license hereunder;
- only use the intellectual property for which it has been provided a license for the purposes of advertising and marketing and only in accordance with the terms and conditions set out herein; and
- immediately cease using any and all intellectual property of the Company, its affiliated entities or its subsidiaries upon the Company’s request to do so, or upon termination or expiration of this Agreement.
- The Vendor agrees that any marketing materials, advertising and other creative or promotional material created by the Vendor under this Agreement, either by the operation of Section 6, Section 7 or otherwise, are and will remain the property of the Company, or its Third-party Advertisers, as applicable. The Vendor hereby agrees that it does not have any intellectual property rights to the marketing materials, advertising or promotional materials used or created under this Agreement.
- The Vendor will maintain accurate and complete records of all information necessary to determine compliance with this Agreement and the covenants and obligations hereunder.
- Without limiting the foregoing, if the Vendor elects to offer a dedicated phone number for the acquisition of Leads or Events under this Agreement (a “Dedicated Number“), such records shall include call logs relating to the Consumers calling the Dedicated Number.
- The Vendor shall maintain such records during the Term of this Agreement and for a period of three (3) years following expiration or termination of this Agreement (the “Records Period”). During the Records Period, the Company shall have the right, upon ten (10) business days prior written notice, at the Company’s expense, to engage a third-party auditor (provided such auditor has executed a customary confidentiality agreement) or to designate certain of its employees to review such records of the Vendor during normal business hours, to determine compliance with its obligations under this Agreement (each, an “Audit”).
- The Vendor’s personnel will reasonably cooperate with the Company in connection with such Audit, including, but not limited to, requests to correct any deficiencies discovered during such Audit.
- If any such Audit by the Company identifies any fraud, misrepresentation or non-performance, Vendor shall reimburse the Company for the total costs of such Audit together with all amounts paid to the Vendor during the term of this Agreement. For the avoidance of doubt, the foregoing sentence shall not limit the Company’s available remedies in connection with any such fraud, misrepresentation or non-performance by Vendor, including seeking damages and re-imbursement relating to same.
- For each Lead provided by the Vendor to the Company, the Company shall compensate Vendor based on the rate described in the Pricing List attached to this agreement or contained within the Publisher Agreement as Schedule “A”. Some types of Leads require certain Conversion Payout Events to occur before compensation will be paid to the Vendor. As required, details surrounding these Conversion Payout Events will be described in the Pricing List attached to this agreement or contained within the Publisher Agreement as Schedule “A”. Vendor shall be responsible for any and all sales taxes applicable to its sale of the Leads. Vendor is registered for GST and its GST registration number must be provided to the Company’s
- The Company and Vendor may amend or replace the Pricing List attached to the PA as Schedule “A” from time to time upon mutual agreement between the parties, which amendment shall apply to all Leads provided after the time of such amendment, or as otherwise agreed to by the parties at the time of amendment. An agreement to amendments may be effected in writing via SMS, MMS, Skype, WhatsApp, email, or other written agreement as between the Company and the Vendor.
- With respect to consideration for the Vendor’s Campaign performance, the Company shall compensate the Vendor based on the rate for certain Conversion Payout Events described in the Pricing List attached to the Publisher Agreement as Schedule “A” or as provided for in a Lead Order, as applicable.
- The Company, in its sole discretion, may withhold any and all payments due and owing to the Vendor until such a time as the applicable Client has paid the Company for the associated Campaign, Lead or Company Vertical, as applicable. The Company reserves the right to reduce any and all payments owed to Vendor where the applicable Client has offset corresponding payments owed to the Company in relation to the Campaign, Lead or Company Vertical.
- The Company shall compile, calculate and post data derived from Campaigns, Leads and Company Verticals in order to determine the fees due to the Vendor (the “Data“). The Company will provide the Data to the Vendor based on information that is available to the Company. The Data shall be provided to the Vendor via an online portal, the Vendor’s preferred process or as otherwise agreed to by the parties.
- Any questions or disputes regarding the Data must be submitted in writing to the Company within three (3) business days of the date that the Data is provided to the Vendor; otherwise, the information contained therein will be deemed accurate and accepted by Vendor. The Company will investigate and resolve any Data-related questions or disputes in its sole discretion.
- The Company shall not be responsible to make any payment to the Vendor where:
- the Leads delivered by the Vendor are comprised of Consumers that have previously registered for, opted-in to, or are already a member or customer of the Company or the Client;
- the Leads are generated using fraud, a Co-Registration Offer, an Incentivized Offer or otherwise in violation of the restrictions contained herein; or
- the subject Consumer did not consent to receive marketing from the Vendor.
- In consideration for the services rendered by the Vendor hereunder, the Company agrees to pay the Vendor the compensation described in Section 9 via Electronic Funds Transfer, Wire, Direct Deposit or Credit Card within thirty (30) days of the date on which the Company receives an invoice from the Vendor in respect of such services, subject to the Company providing notice to the Vendor of any Bad Leads as discussed in Section 3(f), or in the event of any withheld payments as discussed in Section 10.
Information Captured by the Vendor
- Where applicable, the Consumer Information that will be provided to the Company will be based on the Company Vertical as directed by the Company under any one of the Company’s sub-brands. The Vendor will be driving traffic to the appropriate web platform and/or web funnel as directed by the Company and all Leads and Conversion Payout Events will be tracked by the Company on behalf of Vendor.
Ownership of Consumer Information
- Upon receipt of a Lead contained in a Lead Order or any Excess Leads, replacement Lead or any other type of Lead delivered under this Agreement, the Company shall have sole and exclusive ownership of said Lead and all rights associated therewith, including, without limitation, all Consumer Information contained therein as well as all related information and all intellectual property rights therein.
- Once the Company receives any Lead from the Vendor, the Vendor shall retain no rights whatsoever to the Lead, the Consumer Information contained in the Leads, nor any rights to any related information and intellectual property rights therein.
- Without limiting the foregoing, the Vendor explicitly agrees not to sell, resell, market to, or re-market any Lead provided to the Company under this Agreement or offer any goods or services to Consumers who are the subject of a Lead provided to the Company under this Agreement.
Terms and Conditions for Information Capture
- Where applicable, the Vendor shall ensure that any applicable terms and conditions are in compliance with applicable advertising and privacy laws including the requirements of the Telephone Consumer Protection Act, Canada’s Anti-Spam Legislation (“CASL“) or any similar applicable legislation, to obtain and process Consumer Information. The Company shall be entitled to review the Vendor’s terms and conditions and privacy policies to ensure the Vendor’s terms and conditions and privacy policies meet this requirement and all Privacy and Data Protection Requirements. The Vendor shall take all steps reasonably necessary to aid with the Company’s review of the Vendor’s terms and conditions and shall make all such changes or amendments as are reasonably requested to such terms, conditions, and privacy policies as the Company may request.
- The Vendor shall ensure that it complies with CASL and all other applicable laws when contacting individuals in connection with this Agreement. Where an individual has “Opted-Out” of receiving communications from the Vendor, the Vendor shall provide this individual’s name and contact information to the Company to ensure that these individuals can be added to the appropriate do not call list, suppression list or unsubscribe list, as applicable.
- The Vendor agrees to comply with all applicable Provincial and Federal advertising, privacy and communications regulations regarding do not call lists, suppressions lists and unsubscribe lists. Vendor agrees that if they are to contact (via SMS, MMS, email, mail, telephone or otherwise) any individuals to entice them to apply for a product or service provided, brokered or arranged by the Company, then the Vendor will do so only to individuals that have provided consent to receive such offers and have not “Opted-Out” of any communication.
- If the Vendor continues to contact an individual who has “Opted-Out” of receiving further communications, either by the function of Section 14(b), or in some other capacity, in connection with providing the services and goods contemplated in this Agreement, this may result in the immediate termination of this Agreement at the election of the Company, without prior notice.
- Vendor is responsible for knowing the source or sources of the Leads. Information, email addresses and other contact information may not be obtained by the Vendor through the use of a program for random generation of email addresses, or crawling or scraping websites or online services, nor can the Vendor utilize email lists without the prior consent of those individuals.
- If Vendor intends to leverage any third-party customer list, then the Vendor agrees to appropriately vet the list to ensure that individuals appearing on the list have provided consent, are not on an active suppression list and are not on the do not contact list of such third-party. Vendor explicitly agrees to indemnify the Company for any such failure by Vendor under this Section, in accordance with Section 23 of this agreement.
The Company acknowledges and confirms that the Vendor is an independent entity and is not an agent or employee of the Company.
The initial term of this Agreement shall commence on the date first written above and will continue on a month to month basis. After the end of the initial month, this Agreement shall automatically renew for successive monthly terms unless previously terminated by either party at any time in accordance with Section 17.
- This Agreement may be terminated immediately by the Company and at any time upon the provision of written notice from the Company to the Vendor.
- This Agreement may be terminated by the Vendor at any time on thirty (30) days written notice from the Company or the Vendor.
- Subject to Section 17(e), in the event of termination by the Company as a consequence of either: (i) the provided Leads not meeting the Company’s specified requirements; or (ii) any breach of this Agreement by the Vendor; this Agreement shall be immediately terminated and the Company shall not be required to pay for any such previously delivered Leads for which payment has not yet been delivered. Subject to Section 17(e), in the event of termination for any other reason, the Company shall pay any outstanding balances owed to the Vendor, including any balance owing for outstanding Lead Orders (other than in respect of Bad Leads), within thirty (30) days of termination but no additional Leads shall be delivered following such termination date and the Company shall not be required to pay for any such Leads delivered subsequent to the termination date.
- Vendor agrees that in the event of breach of any of the terms of this agreement by vendor, the Company will have the right to pursue the Vendor in its personal & corporate capacity, including any affiliated entities or subsidiaries and, in the case where the signatory hereto is signing on behalf of a majority owned entity, the signatory additionally agrees that in the event of a breach the Company will have the right to pursue such signatory in its individual or personal capacity directly for recovery or damages caused by any breach of the enclosed terms, including but not limited to fraud, gross negligence or willful misconduct on the part of the Vendor.
- In the event of any termination of this Agreement, Sections 17, 18, 19, 20 and 23 shall survive such termination and shall continue in full force and effect, for a period of twenty-four (24) months (with respect to Sections 17, 18, 19 and 23) and for a period of eighteen (18) months (with respect to Section 20) following such termination date.
Representations and Warranties of the Vendor
The Vendor represents, warrants and confirms that:
- it is duly registered and/or has all required licenses or permits required to conduct its business and perform all duties under this Agreement and conduct its business in full compliance with all laws, regulations and rules applicable to it and will perform such duties in accordance with the standards described herein;
- it is a valid and subsisting corporation under the laws of the jurisdiction of its incorporation with full power and authority to enter into this Agreement and to carry out its obligations hereunder;
- this Agreement constitutes a legal, valid, binding and enforceable obligation of the Vendor subject to:
- bankruptcy, insolvency, re-organization, arrangement, winding-up, moratorium or other similar laws of general application relating to or affecting the enforcement of creditors’ rights generally; and
- general principles of equity, including the fact that equitable remedies, such as specific performance and injunctions, may only be awarded at the discretion of the court;
- during the past five (5) years neither Vendor nor any of its directors, officers, agents or employees have been subject to any criminal conviction (other than summary offenses);
- the execution and delivery of this Agreement, the performance of its obligations hereunder and the completion of the transactions contemplated herein will not result in violation of any law, regulation or rule by the Vendor and the Vendor has read this Agreement and understands the contents hereof and has not relied upon any advice from the Company;
- the execution and delivery of this Agreement, the performance of its obligations hereunder and the completion of the transactions contemplated herein will not result in violation of any enforcement agreement, memorandum of understanding, or similar agreement;
- there are no suits, actions or proceedings against or affecting the Vendor, or any of its directors, officers, agents or employees, before any court, governmental body (including any regulatory authority) or arbitrator (nor to the Vendor’s knowledge, any such actions pending or threatened in writing) which are likely to materially adversely affect the Vendor’s ability to perform its obligations hereunder and the Vendor is not in default with respect to any order of any court, governmental body (including any regulatory authority) or arbitrator which materially adversely affects the Vendor’s ability to perform their obligations hereunder;
- Vendor shall not create, maintain or facilitate offers that, in the Company’s reasonable discretion, will distract Consumers from proceeding with the Company Vertical provided, brokered or arranged by the Company;
- it has and will continue to comply with all applicable laws in the collection, use, transmission, and storage of any and all Consumer Information that the Vendor obtains from individuals including, but not limited to, such individual’s non-public personal information;
- it has obtained all Leads to be provided to the Company in compliance with, is currently in compliance with and will continue, throughout the term of this Agreement, to remain in compliance with:
- all Privacy and Data Protection Requirements; and
- all applicable provincial and federal consumer protection legislation, including but not limited to, the Consumer Protection Act (Alberta) the Competition Act (Canada) and CASL;
- it has implemented adequate and reasonable cyber security, privacy, consumer protection and data protection and handling procedures and protections and that it either has, or will if reasonably requested by the Company, obtain adequate insurance to protect and insure against data, privacy, consumer protection or cyber security breaches. Such procedures and practices shall be reasonably designed to (i) ensure the security and confidentiality of the Consumer Information, and (ii) identify and protect against any anticipated threats or hazards to the security or integrity of Consumer Information, including unauthorized access to or use of Consumer Information;
- Vendor shall take all necessary steps to ensure that Consumer Information is not subject to unauthorized disclosure, use, alteration, destruction or other compromise of such information (“Misappropriation”) by Vendor, its parents, affiliates, employees, officers, directors, agents, subsidiaries, representatives, independent contractors, or any other party to whom Vendor makes the Consumer Information available. Vendor will not allow any of its employees to access Consumer Information, except to the extent that an employee needs access to such information in order to facilitate providing the Company with Leads and in compliance with this Section 18;
- Vendor will immediately notify the Company of any actual or potential exposure or Misappropriation of Consumer Information. At Vendor’s sole expense, Vendor shall cooperate with the Company and law enforcement authorities (as applicable) in investigating and resolving any such Misappropriation including, but not limited to, any efforts to notify injured or potentially injured parties and regulatory bodies and provide satisfactory remedies;
- it has the full legal right to, and ownership of, all data, information and materials provided to the Company hereunder and has obtained valid consent from each such Consumer to a credit check along with all required consents from Consumers to the sale and use of any Lead related to such Consumer, including with respect to any resale of such Lead by the Company;
- Vendor’s services, underlying software and any and all other information, creative or content provided by Vendor hereunder do not infringe, misappropriate, dilute, impair, or constitute unfair competition with respect to any patent, trade name, trademark, copyright, or other proprietary rights of any third-party;
- it shall honour the terms of all intellectual property and software licensing arrangements between the Company and the parties with whom the Company has licensed such intellectual property or software and the Vendor acknowledges that other than as expressly set out herein, the Vendor shall have no rights or license to any intellectual property or software of the Company or of the parties whom the Company has licensed intellectual property or software from;
- Vendor shall have performed a:
- criminal background check on any individual it employs who may have access to Consumer Information; and
- check against the Consolidated Canadian Autonomous Sanctions List for any individual that it employs; and
- Vendor will not grant access to Consumer Information if either checks set out in Sections 18(q)(i) or 18(q)(ii) or other information in Vendor’s possession would lead a reasonable person to believe that the individual has a criminal conviction (other than summary offenses), is on the Consolidated Canadian Autonomous Sanctions List, or that the individual presents a threat to the security of Consumer Information.
The representations and warranties set out above are true and correct as of the date of this Agreement and will remain so throughout the term of this Agreement. The Vendor shall advise the Company immediately if the foregoing changes. Notwithstanding anything in this Agreement to the contrary, the Vendor’s obligations contained in this Section 18 shall survive termination of this Agreement for a period of twenty-four (24) months.
Use of Confidential Information
- Confidential information that is, or would reasonably be expected to be, treated as confidential and proprietary by the Company or the Vendor, as applicable, including, without limitation:
- a Consumer’s or other individual’s personal information, information pertaining to third-parties, affiliates, partnerships and individuals involved, directly or indirectly, in the parties’ business and the pricing under this Agreement; or
- the existence of any relationship between the parties or the terms or existence of this Agreement;
in each case whether spoken, written, printed, electronic or in any other form or medium and regardless of whether delivered or accessed by the Vendor prior to, or following, the Effective Date or the date of this Agreement (shall constitute, “Confidential Information” hereunder);
- The party receiving Confidential Information (“Recipient Party“) agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the party disclosing the Confidential Information (“Disclosing Party“) in writing, shall not use Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (a) who need to know such Information in order for the Receiving Party to perform its obligations hereunder; and (b) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential Information shall not include any information that the Receiving Party can verify with substantial proof: (1) is generally available to or known to the public through no wrongful act of the receiving party; (2) was independently developed by the Receiving Party without the use of Confidential Information; or (3) was disclosed to the Receiving Party by a third-party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party.
- The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
- The Receiving Party shall, immediately upon request or upon termination of this Agreement, return or destroy all Confidential Information of the other party and all copies thereof.
- Confidential information that is, or would reasonably be expected to be, treated as confidential and proprietary by the Company or the Vendor, as applicable, including, without limitation:
Non-Solicitation, Non-Competition and Non-Disparagement
- During the term of this Agreement and for a period of eighteen (18) months following the expiration or termination of this Agreement for any reason, the Vendor shall not:
- solicit or entice, or attempt to solicit or entice, either directly or indirectly, any existing or potential customer of the Company, to become a customer of any business or enterprise that competes with the Company for any Business, or to cease or limit doing any Business with the Company;
- solicit or entice, or attempt to solicit or entice, either directly or indirectly, any existing or potential competitor of the Company, to become a customer of the Vendor in any business or enterprise that competes with the Company for any Business related to the category or categories of Company Vertical that the Vendor has provided, or continues to provide, Leads to the Company as a result of this Agreement;
- solicit or entice, or attempt to solicit or entice, either directly or indirectly, any employee or independent contractor of the Company to become employed or retained by any business or enterprise that competes with the Company for any Business, or to cease or limit their employment or retainer with the Company;
- circumvent or compete, directly or Indirectly with the Company in any Company Verticals; or
- attempt to circumvent the terms or intent of this Agreement, either directly or indirectly, and understand and agree that that any action of circumvention or unauthorized disclosure to any third-parties shall be considered a breach of this Agreement entitling the Company to exercise the remedies available to it hereunder. Such remedies shall be in addition to any injunctive or other equitable relief, or remedy at law, that may be sought by the Company to prevent or remedy further circumvention or other terms and conditions of this Agreement.
- Unless otherwise required by applicable law, the Vendor shall not, on its own behalf or on behalf of or in connection with any other person, in any capacity whatsoever, make or publish written or oral statements or remarks (including the repetition or distribution of derogatory rumors, allegations, negative reports or comments) which are intended to or could be reasonably expected to have the effect of disparaging, impugning or damaging the integrity, reputation or goodwill of the Company or its respective affiliates or any of the Company’s directors, managers, officers, employees or equity holders.
- During the term of this Agreement and for a period of eighteen (18) months following the expiration or termination of this Agreement for any reason, the Vendor shall not:
Brand Bidding Prohibition
- The Vendor, acknowledges and agrees that it will not, and is prohibited from the following: (i) bidding on any search terms or phrases containing the Company trademarks, the Company branded terms, and misspellings or confusingly similar terms; (ii) bidding on any the Company URLs or variations or misspellings (soft branded) thereof; (iii) using any the Company trademarks without consent, or any the Company branded terms, and misspellings or confusingly similar terms in the Vendors paid search ad copy. The Vendor covenants that it will broad negative match the Company trademarks, the Company branded terms, and misspellings or confusingly similar terms in all paid search campaigns. If the Vendor is found to be in breach of this provision, this Agreement will be subject to immediate termination pursuant to Section 17(c).
Code of Conduct and Security Guidelines
- Vendor represents, covenants and agrees that they have reviewed Schedule “C” and Schedule “D” of this agreement and/or within the PA agree to the terms contained within.
- The Vendor shall indemnify and hold harmless the Company, its affiliates, employees, officers and directors from and against any and all claims, actions, suits, proceedings, judgments, damages, liabilities, costs and expenses, including reasonable attorneys’ fees arising directly or indirectly from breach of this Agreement by the Vendor or grossly negligent acts or omissions, or willful misconduct of the Vendor or its personnel and affiliates.
- This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed and interpreted in accordance with the laws of the Province of Alberta, Canada and the Federal Laws of Canada applicable therein, without regard to conflict of laws principles. The Parties submit exclusively to the jurisdiction of the courts sitting in Calgary, Alberta, for the adjudication of any controversy or claim, at law or in equity, pertaining to this Agreement or related to any of the transactions contemplated hereunder.
Disputes and Choice of Venue
- Any legal proceeding arising out of or in connection with this Agreement, any ancillary agreements (to the extent no choice of law is specified therein) or any transactions contemplated by this Agreement may be brought in the Court of Queen’s Bench of Alberta situated in the City of Calgary (the “Court“) and each of the Parties irrevocably submits to the jurisdiction of that Court. The Parties agree not to contest such jurisdiction or seek to transfer any legal proceedings to any other jurisdiction on the grounds of inconvenient forum or otherwise.
- If any arbitrator or court of competent jurisdiction determines any provision of this Agreement or portion thereof to be illegal, invalid or unenforceable that provision or portion thereof will be severed from this Agreement without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
- Any demand, notice or other communication to be given in connection with this Agreement must be given in writing and may be given by personal delivery, by courier or e-mail, addressed to the recipient as follows:
To the Company: As per the publisher agreementTo Vendor: PO Box 90022 RPO Sierra Springs, Airdrie, AB T4B 0A2or such other address, individual or electronic communication information as may be designated by notice given by any party to the other party. Any demand, notice or other communication given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof and, if given by courier, on the business day following the documented delivery thereof and, if given by e-mail, on the day of confirmation of receipt by the recipient.
- Any demand, notice or other communication to be given in connection with this Agreement must be given in writing and may be given by personal delivery, by courier or e-mail, addressed to the recipient as follows:
- Assignment by the Company: The Company may assign its rights or obligations hereunder at its full discretion without notice to the Vendor and without the prior written consent of the Vendor.
- Assignment by Vendor: Vendor shall not assign any right or any obligation under this Agreement without the prior written consent of the Company, and any such attempted assignment shall be null and void, provided, however, that an assignment made in connection with a change of control transaction or a sale of all or substantially all of the Vendors assets shall not require the consent of the other party. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- This Agreement and Schedules “A”, “B”, “C” and “D” within the PA, and these terms comprise the entire agreement and understanding between the parties concerning the provision of Leads and the services rendered by the Company under this Agreement and supersedes any prior understanding or agreements, whether oral or written, concerning the subject matter hereof.
- With the exception of Schedules “A”, “B”, “C” and “D”, which may be amended from time to time as set out herein, this Agreement shall not be amended except by a written agreement that: (i) is signed by the authorized signing officers of each of the parties; and (ii) expressly states that it is intended to amend this Agreement. No waiver of any obligation or any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided, will be limited to the specific obligation or breach waived.
- (a) In this Agreement, except to the extent otherwise provided herein or the context otherwise requires: (i) the definition of terms herein shall apply equally to the singular and the plural; (ii) any pronoun shall include the corresponding masculine, feminine and neuter forms; (iii) the words “include,” “includes” or “including” shall be deemed to be followed by the words “without limitation”; (iv) the words “herein,” “hereof,” “hereto,” “hereunder” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or other provision of this Agreement; (v) the use of the word “or” is not intended to be exclusive unless expressly indicated otherwise; (vi) the words “will” and “shall” have equal force and effect; (vii) reference to any Section or Schedule shall mean such Section of, or such Schedule to, this Agreement, as the case may be, and references in any Section or definition to any clause means such clause of such Section or definition; and (viii) reference to any Applicable Law shall mean such Applicable Law (including all rules and regulations promulgated thereunder) as amended, modified, codified or re-enacted, in whole or in part, and in effect at the time of determining compliance or applicability
Execution of Agreement
- This Agreement may be executed in any number of counterparts, and by portable document format or other electronic means, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument. Delivery of an executed signature page to this Agreement by any party by electronic transmission will be as effective as delivery of a manually executed copy of this Agreement by such party.
SCHEDULE A & B ARE CONTAINED WITHIN THE PUBLISHER AGREEMENT
Code of Conduct
Vendor shall follow the following Code of Conduct when describing or promoting the Company’s products and services in any medium, including through the Vendor’s website, via email and on social media sites including, but not limited to, Facebook, Twitter, LinkedIn, Instagram or TikTok. Vendor shall ensure that any of Vendor’s employees, contractors, vendors, advisors or any other person associated with Vendor which Vendor has the ability to direct, will be bound by this Code of Conduct.
Any violations of this Code of Conduct in Vendor’s performance under this Agreement may result in the immediate and permanent suspension of Vendor and the withholding of any ill-gotten gains, in addition to any other rights or remedies which the Company may have.
- With the exception of editorial content, any content that refers to the Company or the Company products and services must be preapproved in writing by the Company.
- Vendor may not engage or permit any sub-Vendors, resellers or advertising networks to promote or distribute the Company unless Vendor has received prior written approval from the Company.
- If Vendor is aware of any alleged violations of this Code of Conduct, Vendor must contact the Company immediately.
- If Vendor is subject to litigation or regulatory investigation, unless otherwise prohibited by Applicable Laws, Vendor must provide the Company immediate notice.
No Misleading Content or Actions:
- Vendor may not represent any content referencing the Company, its products or its services in a deceptive, misleading or unfair manner. Vendor may not refer to the products or services offered by or through the Company in any manner that suggests such products or services are capable of doing more than it promises, such as, for example, marketing loan refinancing or personal loan origination or as capable of improving a person’s credit score or eliminating debt.
- Vendor may not use third-party trademarks to direct traffic to the Company in a manner that is confusing, tarnishes such trademark or implies an endorsement by, or association with, the third-party trademark owner without such trademark owner’s prior written consent.
- Vendor may not use any third-party content (such as graphics, text, video and audio) without the prior written consent of such third-party, except to the extent permitted by applicable laws.
- Vendor must not charge individuals for providing information about the Company.
- If Vendor collects Consumers’ personal information and shares it with the Company, it must clearly and conspicuously disclose that fact to individuals prior to such collection.
- Vendor must not advertise any of the Company’s products on gambling related or pornographic related websites.
- Advertising disclosures must be clearly written and must employ language that is easily understandable by the average individual. For any communication that includes a reference to the Company, including website pages, Vendor must include a disclosure that states whether the Vendor receives compensation from the provider whose financial products or services appear on the website. For the purposes of this required disclosure, it is insufficient to state that the site “may receive” compensation, or that the site receives compensation from “some” providers, if all of the products or services promoted result in compensation for the Vendor. For example, a site that receives compensation from “most” providers must use “most” rather than “some” or “certain.”
- If the Vendor is reviewing multiple products from a single or multiple lenders, the Vendor should disclose that it has not reviewed every product available, such as: “Not all available financial products and offers from all financial institutions have been reviewed by this website.”
- When providing editorial content, Vendor must disclose the fact that the author’s opinion, analysis or assessment is that of the author’s only and has not been provided or reviewed by the Company, for example: “This content is not provided by Consumer Genius Inc. (“the Company Entity”) or any of the Providers on the Company Entity’s website. Any opinions, analyses, reviews or recommendations expressed here are those of the author’s alone, and have not been reviewed, approved or otherwise endorsed by the Company Entity.”
- Advertising disclosures must be prominently displayed in a clear and conspicuous manner. This generally means:
- The full text of the advertising disclosures must appear in sufficient font, color, size and style to be clearly legible and easily distinguishable from other site content wherever it appears on the page.
- Use of bold or italicized text is recommended.
- Context is very important. For example, a disclosure on a page where there is little other text is likely to be far more conspicuous than it would be on a page that is very busy. For the latter, a larger, darker disclosure may be needed to be conspicuous. Thus, to ensure that the hyperlink is clear and conspicuous, attention should be paid not only to its placement, its color and size and the heaviness of its font, but how much other text surrounds it.
- Any advertising disclosure placed only in the footer of each page with no other visual or contextual cues is not acceptable.
- “Prominently displayed” means:
- Posting the full disclosure text in all caps, large font and/or bold letters in a text box labeled “Advertising Disclosure” near the financial product content; or
- Posting an “Advertising Disclosure” jump to the full disclosure elsewhere on the page, a prominent overlay or separate webpage.
- If the advertising disclosure text is placed in a less prominent location on the page than near the financial product content (e.g., in a footer), then visual cues (e.g., asterisks, superscript or a symbol) must be used in the appropriate location (e.g., after the words “Advertiser Disclosure”) to bring the disclosure to the attention of individuals.
- Alternatively, the text could be hyperlinked to the disclosure text. If using a hyperlink labelled “Advertising Disclosure” (or something similar, like “Advertiser Disclosure”), then the hyperlink itself must be clear and conspicuous, both in appearance and placement, and it must be obvious to readers that it is a hyperlink (e.g., the text of the hyperlink appears with an underline or in the same color as other hyperlinks on the site). The hyperlink can prompt an overlay, “jump” the reader to text that is in a footer or in another non-prominent spot on the page, or send the reader directly to a webpage in which the aggregator provides the advertising disclosure and other editorial policies.
This section addresses language, visual cues and rankings that, directly or indirectly, appear to assess, compare and/or evaluate financial products. This can include:
- Language: “best,” “top,” “favorite,” “editors’ pick, etc.
- Visual Cues: stars, badges, ribbons, highlighting, font size, etc.
- Rankings: express rankings (e.g., 1-10) and implicit rankings (e.g., “favorite” or “first”).
Any time Vendor uses such assessments, Vendor must provide supporting evidence that such assessments are based on the Vendor’s independent editorial judgment. The means of conducting the assessment must be consistent with the advertising disclosure.
In addition, the following rules apply with respect to specific types of assessments:
- “Best,” “Top,” etc. Products or Services: Language indicating how such determinations were made must be disclosed with prominence and in close proximity to the content.
- Visual Cues: Star ratings or other visual cues should explain the meaning of such ratings.
- Rankings and Lists: If a Vendor’s site includes the Company products in a ranking or other comparative valuation suggesting relative quality, value or desirability (e.g., best to worst, top 10), then that ranking cannot be based on whether those ranked products or services have compensated the Vendor specifically for inclusion in such a ranking. This does not preclude a Vendor from receiving compensation for other purposes (such as a commission for clicking on a particular provider’s advertised product or featuring a product with prominent “shelf space” on the site).
All reviews reflecting the Vendor’s opinion, analysis or recommendation of the Company products or services:
- must reflect the author’s honest opinions, beliefs and experiences of the Company and its products or services;
- must not contain any statement or representation about the Company or its products or services that, to the best of the author’s and editors’ knowledge, is untrue, misleading or deceptive; and
- must contain an editorial disclosure to inform the reader that the review is that of the author and not provided or reviewed by the Company.
Consistent with federal and provincial laws, the Company policy prohibits discriminatory practices, which include advertising on certain criteria, including age (other than exclusion of prospects to those under 18 years of age); date of birth (other than exclusion of prospects to those under 18 years of age); gender or gender identity; race; religion; marital status; national origin; receipt of income from public assistance programs; color; sexual orientation and identity; individuals exercise of his/her rights under applicable law; education level; language (including device and browser language); geography; and status as a service member of the Canadian armed forces (each a “Prohibited Basis” and, collectively, the “Prohibited Bases”).
If a Vendor selectively displays the Company to its users (whether through algorithm, product assessments, lead generation, the use of a product selection tool or calculator, etc.), the Vendor shall not do so on a prohibited basis, and shall, upon the Company’s request from time to time, certify to the Company’s satisfaction that it complies with the foregoing. This can include, for example, describing in detail its selection methodology (such as the factors, criteria or algorithms used) to ensure such methodology is applied in a non-discriminatory manner, or providing the Company with summary reports demonstrating that its selection methodology, even if facially non-discriminatory, does not have a resulting discriminatory impact or effect (i.e., disparate impact) on users.
Search Campaigns – Protected Search Engine Marketing (SEM) Bidding Keywords:
As a Vendor, you are prohibited from the following:
- • Bidding on any search terms or phrases containing the Company Marks, the Company branded terms, and misspellings or confusingly similar terms;
- • Bidding on any the Company URLs or variations or misspellings (soft branded) thereof; and
- • Using any of the Company Marks, the Company branded terms, and misspellings or confusingly similar terms in your paid search ad copy.
You must broad negative match the Company Marks, the Company branded terms, and misspellings or confusingly similar terms in all paid search campaigns.
If you are found to be in breach, you are subject to Referral Fee reversals and/or termination.
In this Schedule “D” the following capitalized terms have the meanings below:
- “Applicable Law” means all privacy, data security and data protection laws, directives, regulations and rules in any jurisdiction applicable to Vendor and its services under the Agreement.
- “Applicable Standards” means government standards, industry standards and best practices applicable to Vendor and its services under the Agreement.
- “Company Entity” means, collectively, any affiliated brands or subsidiaries including but not limited to Loanz Inc., Consumer Genius Inc., and LendingArch Financial Canada Inc.
- “Confidential Information” means any information that is, or would reasonably be expected to be, treated as confidential and proprietary by the Company Entity or the Vendor, as applicable, including, without limitation:
- Any individual’s personal information, information pertaining to third-parties, affiliates, partnerships and individuals involved, directly or indirectly, in the parties’ business and the pricing under the Agreement;
- the existence of any relationship between the parties or the terms or existence of the Agreement.
in each case whether spoken, written, printed, electronic or in any other form or medium and regardless of whether delivered or accessed by the Vendor prior to, or following, the Effective Date under the Agreement.
- “Safeguard” has the meaning given in Section 3 of this Schedule “D”.
- “Security Incident” means any actual or reasonably likely unauthorized action by a known or unknown person which results in the disclosure of Confidential Information received, stored, processed or maintained by Vendor.
- “Third-Party Provider” means any contractor or other third-party that Vendor authorizes to act on its behalf in connection with the Agreement.
User/Customer Information Handling Requirements
Vendor hereby agrees that it shall comply with all reuse, re-disclosure and other customer information handling processing, security and protection requirements that are specifically required under Canada’s privacy laws, rules and regulations.
At all times that Vendor has access to Confidential Information, Vendor will maintain reasonable administrative, technical and physical controls designed to ensure the privacy, security and confidentiality of that information (“Safeguards”) that comply with this Schedule “D”, Applicable Standards, and Applicable Law, including:
- physical access controls designed to secure relevant facilities, infrastructure, data centers, hard copy files, servers, backup systems and equipment used to access Confidential Information, including controls to prevent, detect and respond to attacks, intrusions or other system failures;
- user authentication and access controls within operating systems, applications, equipment and media;
- personnel security policies and practices restricting access to Confidential Information, including background checks consistent with Applicable Law on all personnel who maintain, implement or administer Vendor’s information security program and Safeguards; and
- continuous monitoring of networks, systems and devices (including services) to ensure the privacy, confidentiality, security, integrity and availability of the Confidential Information.
- maintain reasonable controls to ensure that only individuals who have a legitimate need to access Confidential Information under the Agreement will have such access;
- promptly terminate an individual’s access to Confidential Information when such access is no longer required for performance under the Agreement; and
- be responsible for any unauthorized access to Confidential Information under Company Entity’s custody or control (or any of its Third-Party Providers’ custody or control).
Vendor is responsible, and liable to the Company Entity, for the Vendor’s third-party providers’ acts and omissions. Vendor must contractually require each Third-Party Provider that has access to Confidential Information to protect the privacy, confidentiality and security of Confidential Information using at least the same level of protection and confidentiality obligations that apply to Vendor under the Agreement. Vendor will regularly assess its Third-Party Providers’ compliance with those contractual requirements.
Security Monitoring and Incident Response
Vendor will maintain a reasonable security monitoring and incident response program to both detect and effectively respond to security events across all systems impacting Confidential Information.
Training and Supervision
To ensure Vendor’s compliance with this Schedule “D”, Vendor will provide reasonable ongoing privacy and information protection training and supervision for all its personnel (including Third-Party Providers) who access Confidential Information. The Company Entity may require Vendor to provide any additional training it deems reasonably necessary for Vendor to perform its obligations under the Agreement.
Security Incident Notification
Vendor shall promptly report to the Company Entity all confirmed Security Incidents. If a Security Incident occurs, Vendor shall immediately notify the Company Entity at [email protected], and provide the following information: the nature and impact of the Security Incident; actions already taken by Vendor; Vendor’s assessment of immediate risk; corrective measures to be taken; evaluation of alternatives and next steps. Vendor shall continue providing: (i) appropriate status reports to the Company Entity regarding the resolution of the Security Incident and prevention of future similar Security Incidents; and (ii) cooperation, as reasonably requested by the Company Entity, in order to further investigate and resolve the Security Incident. The Company Entity may require that the services provided under the Agreement be suspended, connectivity with Vendor be terminated or that other appropriate action be taken pending such resolution.
Upon request, Vendor shall promptly complete the Company Entity’s “Third-Party Information Security Questionnaire” upon request and other documents or requests for information regarding Vendor’s information security practices. In addition, on an annual basis, Vendor shall perform an independent technical security assessment that includes systems impacting Confidential Information. Vendor shall timely resolve all findings that could directly or indirectly impact Confidential Information and share the findings summary or remediation status with the Company Entity upon reasonable request.