FHA MORTGAGES
New Eclipse Enterprises
BUYER MASTER SERVICES AGREEMENT
New Eclipse Enterprises, Inc. ("New Eclipse Enterprises") operates an online market platform (the "Platform") for the exchange of consumer lead information ("Leads"). This Agreement (the "Agreement") between New Eclipse Enterprises and, you as a Lead Buyer ("Lead Buyer"), sets forth the terms and conditions for Platform use. For purpose of this Agreement, New Eclipse Enterprises and its officers, directors, employees, affiliates, partners, consultants, contractors, agents, and attorneys each, a "New Eclipse Enterprises Entity" and collectively the "New Eclipse Enterprises Entities" shall be referred to as "New Eclipse Enterprises". For purposes of this Agreement, "you" and "your" refers to the Lead Buyer. This Agreement covers all Accounts utilized by you within New Eclipse Enterprises's Platform. Any agent, representative, employee, or entity acting on your behalf with respect to the Platform shall be bound by these terms and conditions.
1. Platform Use.
(a) Platform Access. You may access the Platform for the sole and express purpose of placing Lead orders and purchasing Leads. New Eclipse Enterprises will fill your orders ("Insertion Orders"), subject to availability. You are obligated to the terms specified in each and every Insertion Order placed by you. Leads may reach the Platform as text leads via an on-line form or as voice leads via a tele-verify system. New Eclipse Enterprises may also deliver impressions to its Platform on your behalf thru its FHAmortgage.org application or other tools for purposes of generating interested consumers in your services.
(b) Consent to Recording on Voice Leads. If you purchase voice Leads, you consent to the recording of voice Lead calls for quality verification purposes. You agree to obtain such consent from all account users (including employees or independent contractors) and consumers.
(c) Return Policy. In order for Leads to be eligible for possible returns, you are required to submit them to the Platform with feedback within four days of purchase. Our quality verification team will review the feedback on returns within three days of submission and New Eclipse Enterprises reserves the right to deny returns based on findings of such reviews. All Lead returns will be finalized by the seventh day following the Lead purchase. Unless otherwise specified in an Insertion Order, only data Leads with the following feedback reasons will be eligible for return:
- Disconnected phone number or wrong phone number;
- Lead was delivered by New Eclipse Enterprises to Lead Buyer regardless of source within thirty (30) days from an individual identified by the same email or phone number;
- Instance of fraud - Lead data was created or manipulated with the intention of misleading consumers, New Eclipse Enterprises, or any buyer. This includes leads generated by incentivized marketing;
- Lead enters New Eclipse Enterprises marketplace non-exclusively;
- Lead Sourcer used marketing methods not compliant with CAN SPAM Act, Do Not Call regulations or other applicable state or federal regulations;
- Lead was generated more than three days prior to submission to New Eclipse Enterprises's marketplace; or
- Consumer did not apply for the product.
Leads submitted for return after four days of receipt will not be processed. Lead purchasers who provide inaccurate return reasons repeatedly may be charged a $2.50 processing fee per instance, may be removed from the marketplace, and may not be eligible for Performance Adjusted Pricing at the sole discretion of New Eclipse Enterprises. Voice Leads, including Leads from New Eclipse Enterprises's FHAmortgage.org product, are not returnable; you will be charged for every valid voice Lead transferred to you.
(d) License to Use Leads. You will be granted a license to each Lead purchased from the Platform solely for your own use in contacting the individual named in the Lead with respect to the product, service or programs identified in the Lead. Notwithstanding usage of the term buyer and references to purchasing or buying and words of similar import with respect to Leads, all Leads are licensed and not sold. No license is granted to Lead Buyer or any other party to use the Lead to contact the individual indentified therein for any other purpose including without limitation to i) communicate any other marketing materials, offers, advertisements or content, ii) resell the contact or other information contained in the Lead, or iii) for any other purpose. Any data or permissions collected by Lead Buyer during the servicing of the Lead is considered the property of Lead Buyer.
2. Account Information. Your enrollment and payment information ("Account" information) must remain accurate and complete and you must be authorized to provide such information. You shall notify New Eclipse Enterprises of a change in billing address, credit card/debit card number, expiration date, etc., and you shall promptly notify New Eclipse Enterprises if your payment method is canceled or if there is a breach of your account security. Changes can be made at www.New Eclipse Enterprises.com. You are liable for account activity and Platform use unless you have terminated your participation.
3. Payment. You shall pay New Eclipse Enterprises for all Leads purchased and you shall pre-fund your Account with a credit card, electronic funds transfer, ACH, or wire transfer. Your Account will be debited for the cost of each lead you purchase. Once your Account balance reaches a minimum level, your account shall be automatically replenished according to your payment method settings. Any return of funds is subject to a refund fee of 5% of the returned amount; if your Account balance is $25.00 or less, you shall not be entitled to any refund. If New Eclipse Enterprises does not receive payment, New Eclipse Enterprises may suspend or terminate your Account and Platform activity and may remove your orders from the Platform.
4. Account Disputes and Collection. You must submit charge disputes in writing to New Eclipse Enterprises within 60 days or such dispute will be waived and such charge will be final. If New Eclipse Enterprises engages a collection agency or initiates legal proceedings to collect payment, you shall pay for all related costs (including legal fees).
5. Account Maintenance Fee. You are required to spend at least $25.00 (twenty-five dollars) per calendar month on lead purchases ("Monthly Minimum"). If you purchase less than the Monthly Minimum you will be assessed a $25 Account maintenance fee. After 12 (twelve) consecutive maintenance fees have been charged to your account, your account will be transitioned to a dormant for over 1 (one) year status and any remaining balance will be subject to an Account dormant Fee.
6. Confidentiality.
(a) "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), either directly or indirectly, in writing, orally, electronically, by inspection of tangible objects, or by use or participation in the Platform other than information that the Receiving Party can establish by clear and convincing evidence:
(i) was publicly known prior to the time of disclosure;
(ii) becomes publicly known by the Disclosing Party; or
(iii) is shown to be in the Receiving Party's possession, without confidentiality restrictions, prior to the time of disclosure. The following is Confidential Information of New Eclipse Enterprises:
(i) the New Eclipse Enterprises Materials, including the Platform and the New Eclipse Enterprises Websites, and all associated Intellectual Property Rights;
(ii) the name and identifying information of platform participants other than you; and
(iii) any information, including Lead information, submitted to the Platform.
(b) The parties agree not to disclose or use Confidential Information except as required by law; or on a need-to-know basis to employees, consultants, or other professional advisers of the Parties; or in connection with required tax and accounting disclosures. The parties agree to take all reasonable measures to maintain the confidentiality of Confidential Information. Receiving Party must provide the Disclosing Party a reasonable opportunity to review any legally required disclosure before it is made and interpose its own objection to the disclosure. Confidential Information shall remain the Disclosing Party's property and all embodiments of Confidential Information shall be delivered to the Disclosing Party immediately upon request.
(c) This section will survive termination or expiration of this Agreement as long as any information disclosed is Confidential Information. The parties acknowledge that the harm caused by wrongful disclosure of Confidential Information will be difficult, if not impossible, to assess on a monetary basis and that legal damages may not be sufficient compensation for wrongful disclosure. Either party may enforce its rights under this section by equitable means, including injunctive relief.
7. Non-Solicitation. You agree that, during the term of this Agreement and for a period of one (1) year following the termination or expiration hereof, you shall not directly or indirectly through others contact, approach, solicit, or attempt to solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) or actually hire or engage any employee, independent contractor or consultant of New Eclipse Enterprises, provided, however, that general advertising or solicitation of employment of a New Eclipse Enterprises employee who resigns or is terminated will be deemed not in violation of this prohibition
8. Publicity. Neither party may issue a press release or public statement regarding this Agreement, New Eclipse Enterprises, and/or New Eclipse Enterprises's affiliates or partners without the prior written consent of the other party, and such consent shall not be unreasonably withheld. New Eclipse Enterprises, however, shall have your consent that your name and/or logo may be captured in screenshots of New Eclipse Enterprises's products in examples of consumer facing content used for marketing purposes.
9. Additional Representations and Warranties
(a) Authorization. Each party warrants that the person executing this Agreement is authorized to do so.
(b) Insertion Order Obligations. You represent and warrant that you will fulfill all commitments made by you in each Insertion Order placed by you in the Platform.
(c) Lawful Purposes. You represent and warrant that your use of the Platform is for lawful purposes.
(d) Provide Lead Service. You represent and warrant that you provide the underlying product or service for which each Lead is purchased.
(e) Use of Feedback by New Eclipse Enterprises. New Eclipse Enterprises represents and warrants that its use of feedback is limited to the purpose of rating lead sources, providing analytics for your purposes and assembling aggregate industry information or performance marketing that would be made available to you. New Eclipse Enterprises represents and warrants that your feedback will not shared with other participants in the Platform.
(f) Lead Buyer Branding. New Eclipse Enterprises represents and warrants that it will place Lead Buyer's branding and messaging as provided by you and in accordance with this Agreement where appropriate.
(g) Compliance with Laws and Regulations.
(i) Regulatory Compliance Applicable to all Products. Each party warrants that it is and will act in compliance with all local, state and Federal laws, regulations, and licensing requirements applicable to the subject matter of this Agreement. New Eclipse Enterprises warrants that to its knowledge it is in compliance with the federal CAN-SPAM Act, the Do Not Call Implementation Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Telephone Consumer Protection Act. You agree that you will not market to consumers in violation of federal or state laws, the Federal CAN-SPAM Act, the Do Not Call Implementation Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, or the Telephone Consumer Protection Act. Without limiting the foregoing, you warrant that you shall follow all applicable consumer privacy regulations and guidelines.
(ii) Regulatory Compliance Applicable to Financial Services Products. Each party warrants that it is and will act in compliance with all local, state and federal laws, regulations and ordinances that apply to the marketing, origination, and servicing of consumer credit transactions contemplated to result from the performance of this Agreement, including without limitation, if applicable, the Truth-in-Lending Act (15 U.S.C. 1601 et seq), the Real Estate Settlement Procedures Act (12 U.S.C. 2601 et seq), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq), the Fair Housing Act (42 U.S.C. 3601-3619 et seq), and the Fair Credit Reporting Act (15 U.S.C. 1681 et seq), and all state and federal privacy laws and regulations, including but not limited to, the Gramm-Leach-Bliley Act ("GLB") (15 U.S.C. 6801 et seq), all federal, state mortgage banker, mortgage broker, or loan broker laws and regulations, all laws, regulations, and ordinances related to predatory lending, and all applicable requirements and guidelines of each Investor, government-sponsored entity, board, commission, instrumentality, and other government body or officer having jurisdiction (including, without limitation, Fannie Mae, Freddie Mac, Ginnie Mae, FHA, HUD, and VA). Further, you shall not store any consumer's personal identifiable information, phone number, e-mail address or information that is not required for FHAmortgage.org to display mortgage rates.
(iii) Education Market Specific Regulatory Compliance. Each party warrants and represents that it will comply in all material respects with all applicable laws and regulations pertaining to student educational records and privacy, including without limitation the Family Educational Rights and Privacy Act, 20 U.S.C. �?�§ 1232g and subsequent codes and its implementing regulations at 34 C.F.R. Part 99. New Eclipse Enterprises will promptly notify Lead Buyer in the event it receives notice of any investigation, inquiry or proceeding concerning privacy of student information, as defined in the implementing regulations at 34 C.F.R. Part 99, received by it from Lead Buyer. In addition, each party warrants and represents that it is familiar with the applicable laws and regulations regarding the incentive compensation of persons engaged in student recruiting activities by or on behalf of postsecondary educational institutions, including without limitation those set forth in the Higher Education Act at 20 U.S.C. Section 1094(a)(20) and subsequent codes, and in regulations promulgated by the U.S. Department of Education at 34 C.F.R. Section 668.14(b)(22). Each party does and will continue to compensate all of its employees, subcontractors, agents, and third party vendors who provide any services in connection with this Agreement in compliance in all material respects with the permitted compensation practices enumerated by the U.S. Department of Education at 34 C.F.R. Section 668.14(b)(22)(ii)(A)-(L).
(iv) Debt Relief Services Compliance. Each party warrants and represents that it will comply in all material respects with FTC ruling(s) pertaining to Debt Relief Services, including most specifically, but not limited to, FTC Ruling (FTC File No. R411001).
(v) Voice Lead Identification Compliance. If you are purchasing voice Leads and responding to telephone based consumer requests you represent and warrant that you will immediately identify your company name to the consumer in such Leads and clearly state the purpose of your interaction with the consumer and the service to be provided as required by law, including the Telemarketing and Consumer Fraud and Abuse Prevention Act.
10. Re-selling/Re-marketing Leads. You are prohibited from re-selling any Lead purchased on the New Eclipse Enterprises Platform. You shall use any Lead purchased solely to provide products or services directly to consumers as requested in their lead and as represented in your orders placed in the Platform. Violation of this section will be grounds for immediate termination of this Agreement and gives New Eclipse Enterprises the right to: (i) suspend or terminate your Account; (ii) withhold any Account credit balance at the time of the violation; and (iii) all other remedies under law available to New Eclipse Enterprises. In addition, New Eclipse Enterprises may obtain liquidated damages of $5,000 per incident for violations of this section. You agree that liquidated damages of $5,000 are not a penalty and are a reasonable estimate of the potential loss to New Eclipse Enterprises.
11. Ownership/Intellectual Property. You acknowledge that New Eclipse Enterprises owns all worldwide right, title and interest in and to the Platform, the New Eclipse Enterprises Websites and any software programs or tools, technology, devices, specifications, documentation, concepts, know-how, processes, techniques and materials of any kind used or developed by New Eclipse Enterprises in connection with the creation, implementation, and operation of the New Eclipse Enterprises Websites or the Platform (collectively "New Eclipse Enterprises Materials"), including modifications and derivative works associated with any of the foregoing and including all worldwide patent rights, copyrights, trademarks, trade secrets, know-how, moral rights, and any other intellectual property rights recognized in any jurisdiction associated with New Eclipse Enterprises Materials ("Intellectual Property Rights").
12. Term and Termination. This Agreement shall commence upon your indication that you have accepted this Agreement by "clicking through" the acceptance button on the New Eclipse Enterprises website, and shall last until terminated. This Agreement may be terminated by either party upon 30 days notice. New Eclipse Enterprises may terminate this Agreement immediately, with written notice, if you violate any material terms of the Agreement. This Agreement may be terminated immediately in the event either party becomes insolvent or generally unable to pay its debts as they become due, or becomes the subject of a bankruptcy, conservatorship, receivership, or similar proceeding, or shall make a general assignment for the benefit of creditors, or in the event the activities contemplated by this Agreement violate any law, rule, regulation or order to which either party is subject. This Agreement will be modified automatically thru any version updates online by New Eclipse Enterprises.
13. Notices. Both parties must send notices relating to this Agreement to: (a) for New Eclipse Enterprises, via registered mail, return receipt requested or an internationally recognized express mail carrier to New Eclipse Enterprises, Inc., 2045 S. Barrington Ave., Suite A, Los Angeles, CA 90025, USA; and (b) for you, at the email address listed on your Account, and shall be effective upon sending as long as New Eclipse Enterprises does not receive a delivery error message.
14. Survival and Headings/Reference. Sections 3 through 25 of this Agreement shall survive the termination of this Agreement. Headings of Sections are for the convenience of reference only and do not constitute a part of this Agreement.
15. Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
16. Indemnification.
(a) Indemnification by Lead Buyer. You agree to defend, indemnify and hold-harmless New Eclipse Enterprises and its officers, directors, employees, affiliates, partners, consultants, contractors, agents, and attorneys (each, a "New Eclipse Enterprises Entity" and collectively, the "New Eclipse Enterprises Entities") from and against any and all claims, liabilities, costs, damages and expenses, including reasonable attorneys' fees (collectively, "Claims"), that actually or allegedly result from your use of the Platform or the New Eclipse Enterprises Websites or your breach of this Agreement and for marketing activities in breach of Sections 9 and 9.
(b) Indemnification by New Eclipse Enterprises. New Eclipse Enterprises shall indemnify and hold harmless Lead Buyer, its officers, directors, affiliates, and employees from any and all Claims that actually or allegedly result from (i) any breach by New Eclipse Enterprises of any representation or warranty, and (ii) any breach by New Eclipse Enterprises or a market participant of its representations to New Eclipse Enterprises regarding compliance with the Federal CAN-SPAM Act, the Do Not Call Implementation Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, or the Telephone Consumer Protection Act, or including without limitation the Family Educational Rights and Privacy Act, 20 U.S.C. �?�§ 1232g and subsequent codes and its implementing regulations at 34 C.F.R. Part 99.
17. WARRANTY DISCLAIMER. You agree that Platform use is at your own risk. The Platform, third party products and information and New Eclipse Enterprises Websites are available on an "as is" basis, without warranty or representation of any kind, express or implied (including warranties of fitness, merchantability, non-infringement, or any implied warranties) regarding the Platform, third party products or information, or New Eclipse Enterprises websites; the success or results of your use thereof as measured in any way; and any information, services or products provided in connection with New Eclipse Enterprises. New Eclipse Enterprises operates its website from offices in the U.S. and use by you where illegal is prohibited.
18. LIMITATION OF LIABILITY. New Eclipse Enterprises and New Eclipse Enterprises Entities will not be liable for indirect, special, punitive, exemplary or consequential damages (or loss of revenue, profits or data) arising out of this Agreement even if New Eclipse Enterprises has been advised of the possibility of such damages. New Eclipse Enterprises's aggregate liability shall not exceed the total amount paid by you to New Eclipse Enterprises during the prior 3 months. You agree that you will not hold New Eclipse Enterprises responsible for the selection or retention of, or acts, errors, or omissions by, any third party, third party products, the New Eclipse Enterprises Websites or websites linked to therefrom, and/or New Eclipse Enterprises websites and those to whom New Eclipse Enterprises provides links for content, advertising or any other type of data or information.
19. Relationships of Parties. The relationships of the parties to this Agreement shall be that of independent contractors and neither party shall indicate to third parties that they are anything other than independent contractors.
20. Dispute Resolution. The parties will attempt in good faith to negotiate through any dispute, claim, or controversy ("Dispute") arising under this Agreement. If the Dispute is not resolved through negotiation, it will be submitted to JAMS, or its successor, for arbitration. Any arbitration shall be undertaken in Los Angeles, California before a sole arbitrator, in English, in accordance with the laws of the State of California for agreements made in and to be performed in California. The arbitration shall be administered pursuant to JAMS' Comprehensive Arbitration Rules and Procedures. Except for indemnification obligations, the arbitrator will have no authority to award damages other than actual damages, and may not make any ruling, finding or award that does not conform to this Agreement. Judgment on the arbitration award may be entered in any court of jurisdiction. The Award shall allocate all costs of the arbitration, including arbitrator fees and reasonable attorneys' fees of the party that primarily prevails against the other party.
21. Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of California, except for its conflict of law provisions. Each party may apply to the state or federal courts (if applicable) in Los Angeles, California, for injunctive relief until such time as the arbitrator award is rendered or the Dispute is otherwise resolved, and the parties agree that those courts and JAMS arbitration shall be the exclusive fora. You consent to such venue and jurisdiction. A party that primarily prevails is entitled to recover from the other party its reasonable attorneys' fees and costs.
22. Force Majeure. Neither party shall be liable by reason of failure in performance for any cause beyond the reasonable control of such party, such as electrical outages, failure of Internet service providers, riots, war, fires, flood, earthquakes, explosions, and other acts of God.
23. Severability/Waiver. If any provision of this Agreement is held to be illegal, void or against public policy, the remaining provisions shall remain in effect. The parties shall in good faith attempt to modify an invalidated provision to carry out the intent of the Agreement. The waiver of a breach of any provision shall not be deemed a continuing waiver or a waiver of any preceding breach.
24. Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Consent of the other party shall not be required for assignment or transfer made by (a) operation of law, or (b) to an entity that acquires substantially all of the party's stock, assets or business; notice is required. New Eclipse Enterprises may establish from time to time rules and regulations regarding use of the Platform as published on the Platform and incorporated herein by this reference.
25. Miscellaneous. This Agreement contains the entire understanding and agreement of the parties and there have been no promises or representations by either of the parties, except as stated in this Agreement.
IF YOU ARE AN INDIVIDUAL, YOUR REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
