A tipster (send in your tips here) has sent me a marketing agreement from another company offering what appears to be advanced fee debt settlment services.
The tipseter said:
Ok, please find attached Marketing Agreement from LoScalzo & Associates. They have created an exclusive marketing arrangement with ADS Marketing Partners, LLC which is run by a David Miller / Anthony Torres (see signature page). They are one in the same. This shell marketing company than goes out and signs agreements to exclusively market for Loscalzo & Associates (lawfirm). Loscalzo is formerly Trinity Financial Services. And loscalzoconsumerlaw.com
The gimmick this Marketing Agreement points out is each client that gets signed up will be charged a flat monthly fee. In Section/paragraph 2 of the agreement you will see the client gets charges a total of $8,400. That’s $350 for 24 months and the Affiliate that signs up through ADS will get a % of the Fees somehow that the attorney charges. $350 for the 1st payment(they do this to cover the affiliates marketing expenses) but then a residual to equal a total of $3570 or $140 a month for balance of 23 months. So basically the law firm is paying out to the affiliate or branch 42.5% of their fee!!!
What does ADS get? How is the lawfirm paying out over 42.5% of their fee and that be legal?
The agreement specifically points out the advertising agents(sales force, affiliates, branches) will be selling the attorneys program (see Exhibit C). How can outside agents sell an attorney’s product. Clearly not legal if they are not employees of the lawfirm.
So I took a look at the document attached. I have bolded the interesting parts. You’ll find my comments in the [ ] sections.
I wonder how successful any marketer is gong to be if they comply with this agreement. The agreement says in selling the debt relief services:
- it may not make any guarantees to any consumer;
- it cannot instruct a consumer that they will or will not be sued or forced into arbitration;
- it cannot tell any consumer that all creditors will agree to negotiate debt obligations noted in Law Firm agreement;
- it cannot tell any consumer that while a client of the law firm credit will improve;
- it cannot represent that the Marketing Company will provide legal services of any kind;
- it cannot tell consumers with certainty all creditor calls will cease if they retain legal services of Law Firm;
- it cannot represent to consumer‚Äôs that consolidation, debt settlement, credit repair, or other non-Law Firm approved professional services will be provided;
- it cannot represent that recurring payments will be made to creditors.
And then there is the wide open risk to any marketer that signs this agreement, on a number of levels. The marketer is so far out on a plank here that the agreement seems designed to promise the marketer large sums of money for debt settlement leads but leaves the marketer holding the bag when it comes to complying with all possible federal and state laws regarding the sale and marketing of debt settlement services. Section 4 is a massive bucket of cold water, or should be, on any marketer that even thinks of entering into this agreeemt.
I certainly am not qualified to provide a definitive opinion if the marketing agreement is a violation marketing legal services but it appears there is enough of a concern contained in the agreement to make it essential that any marketer that even thinks of signing such an agreement has hired a specialized lawyer from Loeb & Loeb or Veneble to review the agreement and all applicabile state, federal, and bar association rules and laws, prior to signing such an agreement.
I could not find any statement of how much the law firm was charging for their debt settlement services. The agreement does say the marketer will be paid $3,570 as long as the “lead” makes their payments and the law firm pays ADS. A bunch of “ifs” and wishes if you ask me. I wonder how many marketers will actually receive a full $3,570 for the leads they refer. My bet would be the huge miniroty will.
The agreement s very light on the actually services to be sold. We know the marketer will be selling debt settlement services and we know all the things numberated above they can’t claim the services include, so what are the actual services? What is it that consumers will be “qualified” for or sold in order for the marketer to earn teir big fee?
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ADS MARKETING PARTNERS, LLC 600 Johnson Avenue, Suite 3-A1 Bohemia, NY 11716
MARKETING SERVICES AGREEMENT
This Marketing Services Agreement (“Agreement”) is between ADS Marketing Partners, LLC. (“ADS”) of 600 Johnson Ave Suite 3-A1, Bohemia, NY 11761 and______________________________________________ (“Marketing Company”) of ________________________________________________. Marketing Company and ADS shall collectively be referred to as the “Parties” and individually as a “Party.”
A. Marketing Company in its capacity as a marketing organization generates qualified leads who are interested in legal and related services. For purposes of this Agreement, each lead who Marketing Company locates regardless if they meet all of the criteria shall be referred to as a “Lead.” [So the marketer is receiving money for finding specific people interested in legal services.]
B. ADS, or its agents, and contractors, offer marketing and advertising services for LoScalzo & Associates, PLLC. (“Law Firm”).
C. Marketing Company is interested in providing marketing services in the form of generating leads of consumers interested in legal services with a minimum debt of $6000.00.
D. ADS is interested in obtaining marketing services from Marketing Company for purposes depending upon the individual facts and circumstances, of facilitating its sources by referring the lead to the Law Firm for legal services.
E. Marketing Company and ADS are interested in addressing the needs of consumers who are in financial hardship and offer a solution together on the terms and conditions set forth below.
F. For valuable consideration that both Parties acknowledge, the Parties agree as follows:
1. Scope of Services.
1.1. Marketing Company shall deliver to the ADS names and related information of consumers interested in legal services. Such person or persons shall be referred to as a “Lead” and the information gathered regarding each Lead shall be referred to as the “Lead File”.
1.2. As mutually agreed upon by the Parties, Marketing Company may have a Lead sign and complete a contact form using an electronic format with an electronic signature online over the internet either under one or more names designated by ADS. Each such contact form shall be part of the Lead File. [So the consumer will enter into an agreement for legal services by the marketer.]
1.3. Each Lead will meet specific criteria as identified in Exhibit A, Minimum Eligibility Requirements, including amount of debt, and as modified from time to time at the sole discretion of ADS without advance notice. Exhibit A is incorporated by reference into this Agreement. As more fully described elsewhere in this Agreement, ADS or its agent will make an independent determination if a Lead meets requirements of Exhibit A. The Parties acknowledge that unless a Lead meets the requirements of Exhibit A, ADS will have no obligation to pay Marketing Company for the identification of such Lead.
1.4. Marketing Company agrees to deliver each Lead File as soon as possible electronically or by fax, as may be requested by ADS. The Parties acknowledge that Lead File is time sensitive and unless it is delivered in a timely basis, the individual identified in the Lead File may elect not to participate in any legal services with Law Firm or any entity affiliated with ADS.
1.5. Marketing Company represents and warrants that any advertising or sourcing Marketing Company may engage in connection with this Agreement will comply with the requirements, rulings and guidelines set forth by the United States Federal Trade Commission for telemarketing services as modified from time to time. [For an inexperienced marketer, that’s a lot of rules and regulations to stay posted on, and that’s only the tip of the iceberg.] To this end, Marketing Company will establish internal policies and procedures to comply with such requirements and the terms of this Agreement. Marketing Company further represents that any advertising or sourcing Marketing Company may engage in or for any state will also comply with the rules for legal advertising in that state as promulgated by the applicable state bar or other regulatory state entity as modified from time to time. [Is the marketing company going to become an expert in this to comply? You would think that since they are selling legal services for a law firm the law firm would be able to provide specific guidance on this, unless the goal is to toss the marketer under the bus when they screw up.] Marketing Company fully understands: (1) it may not make any guarantees to any consumer; (2) it cannot instruct a consumer that they will or will not be sued or forced into arbitration; (3) it cannot tell any consumer that all creditors will agree to negotiate debt obligations noted in Law Firm agreement; (4) it cannot tell any consumer that while a client of the law firm credit will improve; (5) it cannot represent that the Marketing Company will provide legal services of any kind; (6) it cannot tell consumers with certainty all creditor calls will cease if they retain legal services of Law Firm; (7) it cannot represent to consumer’s that consolidation, debt settlement, credit repair, or other non-Law Firm approved professional services will be provided; (8) it cannot represent that recurring payments will be made to creditors. Should ADS provide a script or written guidelines from time to time, Marketing Company agrees to comply with such guidelines and script and not deviate without express authorization. To the extent that Marketing Company violates any portion of this Section, Marketing Company agrees to defend, indemnify and hold ADS and any party ADS has forwarded a Lead File harmless. [That seems like a tremendous amount of exposure to the marketer since they will be on the hook for a seemingly unlimited amount of money to defend ADS and “any party” ADS forwarded the file to.] Notwithstanding anything else set forth herein to the contrary, the preceding sentence shall survive in perpetuity. [Until the end of time known to man.]
1.6. Upon receipt of a Lead File, ADS or its agent shall confirm that the Lead File meets the minimum eligibility requirements set forth in Exhibit A. ADS will determine at its sole discretion if it wishes to accept or reject the Lead as a qualified lead. ADS is under no obligation to accept any Lead as a qualified lead for referring to Law Firm. [So even if the marketer identifies an acceptable “lead” and assumes all the risk associated with such an endeavor, there is no responsibility for ADS to accept or pay for the “lead.”] The Parties acknowledge that ADS has contracted with Marketing Company to provide marketing services including the sourcing of leads for potential new engagements and Marketing Company may be one of several different marketing sources.
1.7. If ADS determines a Lead to be a qualified lead for referring to Law Firm, the corresponding Lead File shall become the property of ADS subject to all of the requirements of files of Leads of ADS and not the file of anyone else. Thus, each Lead provided to ADS shall be exclusive. Notwithstanding the foregoing, regardless if a Lead becomes or does not become a client of the Law Firm, all Lead Files shall remain Confidential Information subject limitations as more fully described below.
1.8. While the Parties hope that ADS through the Marketing Company can make marketing and advertising of Law Firm’s services available broadly, [So the goal is to do this on a wide basis, even nationwide?] Marketing Company agrees that ADS in its sole discretion may decide not to make services available in particular jurisdictions at any time.
1.9. Exhibit B which is part of this Agreement contains the current list of jurisdictions for which Law Firm services are available through ADS.
1.10. ADS reserves the right unilaterally to modify Exhibits A ,B and C at any time without any advance notice with or without reason at the sole discretion of ADS and without the consent of Marketing Company. The Parties agree that ADS acting in good faith shall be solely responsible for the interpretation of new developments regarding changes in the applicable laws, regulations, enforcement and regulatory matters. Marketing Company agrees to any change in this Agreement including any Exhibit necessitated by changes in the applicable laws, regulations, enforcement and regulatory matters. In such circumstances, ADS acting in good faith will then modify this Agreement and any applicable Exhibit to reflect the needed modification. In the case if the language in this Agreement including any Exhibit is not formally changed, the Exhibit will be deemed changed to reflect the change in the ability to provide services.
1.11. ADS and Marketing Company agree that, excluding a Lead the Marketing Company elects to handle on its own and who Marketing Company does not forward to ADS, ADS shall be the exclusive provider of the referring of qualified leads to Law Firm contemplated under this Agreement provided ADS agrees to accept the Lead.
1.12. ADS shall have the right, at any time, to review any and all marketing, advertising, lead source or any other information used to refer a Lead to ADS and Law Firm to verify compliance with ADS and Law Firm policies, which may change from time to time, and procedures and the non-competition and confidentiality provisions of this Agreement. ADS shall have the right at any time to request the above in writing and Marketing Company will provide such documentation and responses within five (5) business days. Notwithstanding any other provision of this Agreement, Marketing Company‚Äôs failure to honor such request may be considered a material breach by Marketing Company not subject to a cure period.
2. Fees, Licenses and Payments.
2.1. With respect to Leads that Marketing Company transfers to ADS to refer to Law Firm for legal services that Lead meets the minimum eligibility requirements of Exhibit A, ADS will pay Marketing Company $3,570.00 to be paid in monthly installments in 24 payments. Marketing Company will be compensated $350.00 for the 1st installment then $140.0 0 per month until fulfilled, after lead is qualified by Law Firm and the lead remains qualified. [As long as the lead remains qualified. Interesting. So it is not a flat fee based solely on identifying a lead but on the performance of the lead while with the law firm.]
2.2. The Parties fully acknowledge that ADS itself is not a Law Firm. It is understood that Law Firm will not pay directly or indirectly referral fees for Leads from the Marketing Company and that Marketing Company will not in any way share in the fees generated by Law Firm from any consumer. [So the law firm pays ADS for services and ADS then pays the marketer for those services but that relationship is not direct or indirect? And while the law firm says it will not share in the fees from consumers we will learn latter that if a consumer does not pay the law firm then the marketer does not get paid. And there is no relationship. Interesting.] Rather, ADS will pay for marketing services that will include generation of Leads that meet the minimum eligibility requirements of Exhibit A if lead is qualified and accepted by Law Firm. Fees paid by ADS to Marketing Company are on a fixed basis relating to services rendered and not any debt amount engaged. [But a marketer can be paid $3,570 for referring a consumer that has a minimum of $6,000 in debt? Why would the marketer be paid such a large amount and how much would the consumer end up paying for services from the law firm?] Obligations by ADS to compensate Marketing Company are for only qualified leads as long as Law Firm compensates ADS for marketing and advertising services. [As long as the law firm pays, but keep in mind, the claim is no direct or indirect relationship.] Law Firm shall compensate ADS for all qualified and active leads. Should any regulatory authority ever take the position that the methodology utilized does involve inappropriate referral fees or fee sharing, if impermissible, the Parties agree to modify this Agreement so that its activities in the applicable jurisdiction would not constitute impermissible fee sharing or payment of referral fees. If modification is not possible, the Parties agree to terminate participation under this Agreement in the particular impacted jurisdiction. [So if law enforcement finds the agreement is a problem the marketer will get nothing else for those qualified leads they presented, were accepted, and were making payments.]
3. Terms and Termination.
3.1. This agreement shall be for one (1) month (“Initial Term”), and shall renew automatically for additional one (1) month periods (each, a “Renewal Term”) until such time as this agreement is terminated by either party by providing ten (10) days written notice prior to the expiration of the then current one (1) month term. For purposes of this Agreement, the Initial Term and any Renewal Terms shall be known as the Term.
3.2. Either party may terminate this Agreement (a) if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business; (b) upon the occurrence of a material breach of a material provision by the other party if such breach is not cured within five (5) days after written notice is received by the breaching party identifying the matter constituting the material breach; or (c) by mutual consent of the parties. Each Party may terminate this Agreement or suspend its performance under this Agreement, which termination or suspension shall take immediate effect, if the other Party violates or fails to comply with any applicable law or regulation. In addition, each Party may terminate this Agreement for any or no reason on ten (10) days written notice.
3.3. Upon termination, ADS shall have no further obligation, whether earned or contemplated, to compensate or pay any fee to Marketing Company if the terms of this agreement have been violated. If no such violation has occurred, ADS will continue to compensate Marketing Company for all active qualified leads referred prior to termination of this agreement. [If the marketer gets the boot, for any reason, they get no more compensation.]
4. Compliance with Applicable Law.
4.1. Marketing Company covenants and agrees to comply with all obligations imposed on it by any law, regulation, order, license, permit, approval, or other legal requirement applicable to its obligations under this Agreement, as defined below, including but not limited to all federal, state and local laws and shall immediately modify operations if necessary to continue to comply with all applicable federal, state and local laws, as well as any additional regulatory provisions, operating and training procedures, quality requirements and other standards set forth in this Agreement.
4.2. As used in this Agreement, “Applicable Laws” or “applicable laws” means any and all applicable common law, statutes, ordinances, rules, regulations, codes, requirements, laws or orders of any agencies, commissions, officials, courts and other governmental and regulatory authorities and instrumentalities of the United States, and all states or other political subdivisions thereof and supranational bodies applicable thereto, including, without limitation, any of the foregoing governing: (i) state debt adjustment laws, check seller, bill payer, and other laws related to the movement of money and serving as an intermediary between a debtor and creditor, (ii) marketing, telemarketing, advertising or customer communications, (iii) recordkeeping and reporting obligations, (iv) consumer protection, or (v) similar regulatory matters, with respect to the activities provided and/or the products to which the activities relate. Applicable Laws includes, without limitation, the Federal Communications Commission Act and the regulations promulgated thereunder, the Federal Trade Commission Act and the regulations promulgated thereunder (and in the case of advertising and marketing guidance issued hereunder), the Federal Fair Debt Collection Practices Act and the regulatory requirements promulgated thereunder to the extent applicable, the Credit Repair Organizations Act and the regulatory requirements promulgated thereunder to the extent applicable, and similar regulatory requirements of any applicable regulatory authority, including in the states where consumers’ reside, as such regulatory requirements are in effect at the time services are provided, and as such regulations and similar regulatory requirements are interpreted at the time by the relevant regulatory authority. [The marketer is on the hook for every local, state, and federal law as well as licensing, bonding, audits, and compliance. A marketer would be insane to agree to that since I seriously doubt they have any clue about what they are agreeing to.]
4.3. Marketing Company agrees that the legality of all marketing activities and processes and compliance with Federal Trade Commission and legal advertising rules are the sole responsibilities of the Marketing Company. Marketing Company also agrees that if ADS determines in its discretion that any marketing activities violate either Federal Trade Commission guidelines, as modified from time to time, or state rules relating to advertising, upon notice, Marketing Company shall cease the alleged violating activities or modify them to the point where the Marketing Company believes they comply. Violation by Marketing Company of Federal Trade Commission guidelines and state advertising rules, including telemarketing laws, constitute immediate grounds for termination of this Agreement. [And then the marketing company gets no further compensation.]
4.4. Marketing Company shall not engage or permit marketing activities that make use of or involve questionable incentives (e.g. contests, giveaways, and points), email solicitation without strict compliance with the provisions of Subsection 4.5 and make use of spam, blast messages, and the like, unsolicited facsimile transmissions, prerecorded telephone messages, calling any telephone number that has been placed on a state, federal or internal Do Not Call list, or any solicitation designed to coerce or dishonestly entice individuals into a Lead. Marketing Company will comply with all state and federal advertising and telemarketing rules and regulations. Marketing Company further agrees not to engage in or permit anyone to send any messages or materials that are unlawful, considered an act(s) against public policy, discrimination of any kind, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise constitute a criminal offense, give rise to civil liability or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Marketing Company’s non-compliance with any of the foregoing shall be grounds for immediate termination by the ADS of this Agreement.
4.5. To the extent Marketing Company utilizes email to identify and/or aggregate potential consumers, it acknowledges that it has read, understand and will comply with all provisions of the Federal CAN SPAM legislation enacted on January 1, 2004, and any updates, changes and/or modifications to this Act (“Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003″ or “Act”.) Marketing Company’s non-compliance with this Act is grounds for immediate termination of this Agreement.
4.6. In the event Marketing Company acquires a Lead from a source other than ADS marketing efforts, Marketing Company shall be responsible for ensuring that the lead is referred to a Law Firm approved landing page to ensure the lead has been complied with applicable restrictions and obligations placed on Marketing Company herein relative to the method of Lead generation utilized. [So the marketer may get leads generated by ADS to close. Hum, seems like in that case ADS is passing the lead to the marketer to assume all of the legal responsibilities for compliance with debt relief marketing, otherwise, why not just close the lead themselves?] To the extent that Marketing Company violates any portion of this Subsection, Marketing Company agrees to defend, indemnify and hold ADS and any party ADS has forwarded a Lead File harmless. Notwithstanding anything else set forth herein to the contrary, the preceding sentence shall survive in perpetuity.
5. Representations, Warranties and Covenants.
5.1. Marketing Company represents, warrants and covenants that (i) it has the power and authority to enter into this Agreement and perform the obligations hereunder and that the persons executing this Agreement on behalf of Marketing Company are empowered to do so, and (ii) neither the execution of this Agreement, nor the performance by either Marketing Company of its obligations hereunder conflicts with any other agreement by which Marketing Company is currently obligated, including any agreements pertaining or related to the either Marketing Company.
5.2. Marketing Company represents and warrants to ADS that (i) it is lawfully carrying on its business, is financially solvent, is not the subject of bankruptcy, insolvency or any liquidation or receivership proceeding; and (ii) to its knowledge, no claim is pending against it that, if true or resolved adversely to it, would cause any representation, warranty, performance covenant or other covenant set forth in this Agreement to be untrue or breached.
5.3. Marketing Company represents and warrants to ADS that it is licensed, registered (or exempt) and otherwise fully authorized to provide and satisfy its obligations under this Agreement in each jurisdiction of the United States of America that it provides such services. Further, Marketing Company represents and warrants to ADS to comply with all Applicable Laws applicable to its obligations under this Agreement. Marketing Company represents and warrants to ADS that the use, reproduction, distribution or transmission of the Leads will not violate any criminal or civil laws or any rights of any third party, including without limitation any proprietary or property right, or any federal, state or local statute, rule, regulation, ordinance or any order of a federal, state or local court. Further, Marketing Company represents and warrants protecting intellectual property of ADS provided to Marketing Company for its use and now and during the term of this Agreement.
5.4. Marketing Company shall notify ADS promptly in the event it receives notices or has any reason to believe that it is not in compliance with any federal or state laws, regulations, or codes in connection with this Agreement. This provision shall survive termination of the Agreement.
6. Indemnity and Limitation of Liability.
6.1. ADS relies on Marketing Company’s intimate familiarity with its business and cannot undertake to verify all the facts supplied to it by Marketing Company. [Really?] Marketing Company shall defend, indemnify, and hold harmless ADS, its officers, directors, shareholders, employees, agents, parent and attorneys from and against any and all losses, expenses (including, but not limited to, payroll and income taxes and attorneys’ fees), damages, claims, suits, audits, proceedings, investigations, regulatory enforcement actions, demands, judgments, and causes of action of any nature arising from or as a result of (i) Marketing Company’s activities, including but not limited to marketing and advertising legal services, (ii) the failure of Marketing Company or any of its directors, officers, employees, or other representatives to comply with any term or condition of this Agreement, (iii) claims arising out of any alleged or actual violations of Applicable Laws; (iv) the breach of any representation, warranty or covenant given or made by Marketing Company and/or (v) any assertions made on behalf of Marketing Company by ADS.
6.2. Marketing Company will not have the right to select counsel in any indemnification of ADS. [So that then becomes a blank check.] Excluding claims from third parties, the limitation of ADS on any claim shall be the amount of funds ADS retained with respect to a particular qualified lead in the three (3) month period preceding the date of the claim. Any obligation of indemnification shall be subject to immediate notification and full cooperation of the indemnified Party. Indemnification shall not apply with respect to illegal acts and negligence of the indemnified Party. In the case of fault by both Parties, liability shall be apportioned in accordance with fault.
6.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN WITH REGARD TO INDEMNIFICATION FOR THIRD PARTY CLAIMS, ADS SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY LOSS, DAMAGE, OR EXPENSE IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFITS, INCOME, OR GOODWILL, EVEN IF A PARTY IS AWARE OF THE POSSIBILITY OF DAMAGES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR OTHER BASIS IN LAW. THE PROVISIONS OF THIS SECTION WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF ADS AND ITS AFFILIATES ARISING OUT OF THIS AGREEMENT. THE PRICES OF THE SERVICES AND THE COMMERCIAL TERMS OF THIS AGREEMENT REFLECT THE FOREGOING ALLOCATION OF RISK. THIS SECTION IS SUBJECT TO ANY LIMITATIONS OR EXCEPTIONS UNDER APPLICABLE LAW AND TO ANY OTHER PROVISIONS IN THIS AGREEMENT THAT PROVIDE TO THE CONTRARY.
7. Intellectual Property.
7.1. Marketing Company agrees that it does not have the right to use the name, logo or distinctive identifiers of ADS or the Law Firm to whom ADS transfers Lead Files in any advertising or communications in any form in any media without express written authorization.
7.2. As between Marketing Company and ADS and excluding anything that becomes part of a Lead File both Parties agrees that each Party shall solely own and have exclusive worldwide right, title and interest in and to the process, systems, data, or materials used or produced by the specific Party in the performance of marketing or services called for in this Agreement. Such ownership rights shall also apply to any materials or items created or conceived by each Party while this Agreement is in effect that relate to any marketing or services provided by each Party under the provisions of this Agreement. All right, title and interest to any materials provided to Marketing Company are and shall remain the sole and exclusive property of ADS. Marketing Company agrees that Law Firm can offer products and services not contemplated by this Agreement to those persons named in a Lead File that meets the criteria set forth in Exhibit A and that Marketing Company shall have no right to any additional compensation in connection with any such usage. [Law firm may up-sell client and not compensate marketer.] Likewise, all property licensed under this Agreement shall remain the sole and exclusive property of the licensor. In addition, Marketing Company will fully cooperate with any efforts of ADS to protect its ownership rights. Marketing Company understands that once a Lead becomes a qualified lead of the Law Firm, Marketing Company has no control over the individual or ADS’ use of the individual’s name for any other type of marketing activity.
8.1. Marketing Company acknowledges that ADS will rely on the representation from Marketing Company that its staff has not deviated from Exhibit C. Any deviation could create liability. Therefore Marketing Company agrees to defend, indemnify and hold ADS, its affiliated entities, employees, independent contractors as well as any other company or other Marketing Company involved in any way with ADS or an affiliated entity of ADS harmless from any claim or liability whenever made or discovered, without caps or limitations and regardless of who makes the claim relating directly or indirectly from Marketing Company or anyone affiliated with Marketing Company deviating from Exhibit C. Such liability includes by way of example and not limitation, legal fees, legal malpractice claims, loss of income by lawyers, Marketing Companies and ADS, internal costs of response and increased operating costs. Marketing Company understands that deviation from Exhibit C constitutes for cause grounds for immediate termination of this Agreement.
8.2. Notwithstanding the foregoing, Marketing Company may request in writing a deviation from Exhibit C. Before such deviation may be used by Marketing Company, it must be approved in advance in writing by an authorized representative of ADS.
9. Safeguards and Confidentiality.
9.1. Marketing Company agrees to maintain physical, electronic and procedural controls and safeguards to protect the Customer Information received from either party from unwarranted disclosure. These controls include, but are not limited to, the maintenance of appropriate safeguards to restrict access to the Customer Information received from either party to employees, agents or service providers who need such information to cant out the purpose(s) for which the Customer Information was disclosed. For purposes of this paragraph, “Customer Information” means any record containing non-public personal information as defined in 16 C.F.R. ¬ß313.3(n) about the customer, whether in paper, electronic or other form that is disclosed or made available to either party or their affiliates. Additionally, Marketing Company agrees to comply with all provisions of the Gramm-Leach-Bliley Act to the extent such Act applies to their business operations.
9.2. Each Party will hold in complete confidence and not disclose, produce, publish, permit access to, or reveal Confidential Information of the other Party without the express authorization of the other Party unless such information is no longer Confidential Information. For purposes of this Section, Party includes agents and entities related to, under common control, parent organizations of a Party, subsidiary organizations of a Party and Marketing Company. For purposes of this Agreement, “Confidential Information” means all business information of any kind, including all derivatives and the terms of this Agreement. It may be furnished orally, visually, in writing, electronically, in tangible or intangible form. It includes but is not limited to all drafts of documents, existing or potential patents, potential copyrights, trade secrets, proprietary information, business plans, financial information, techniques, schematics, blueprints, records, prototypes, sketches, drawings, models, inventions, know-how, lists of current and potential customers, agents and suppliers, business forecasts, sales and merchandising, policies and procedures, the methodology of debt settlement utilized and marketing plans. Information of any Lead of ADS is Confidential Information. Information of any client, customer or third party that would be Confidential Information if it was information of a Party that is disclosed to one of the Parties is also included in the definition of Confidential Information. This Section shall be inoperative as to any particular portion of information as to which the other Party has furnished documentary proof that such particular portion of the otherwise Confidential Information (i) is or has become generally available to the public other than as a result of a disclosure by the other Party or its agents, representatives or employees, or (ii) which becomes common knowledge within the industry thereafter, provided such knowledge is not obtained directly or indirectly as a result of a disclosure of information by the other Party or (iii) which is rightfully obtained from a third party not under a any obligation of confidentiality; or (iv) which the other Party can show was developed independently of the otherwise Confidential Information received.
9.3. Subject to the remaining terms of subsection 9.4 below neither Party will disclose any of the terms or conditions of this Agreement to any other person or entity; provided, however, that either Party may reveal such terms and conditions to (1) its personal legal counsel, (2) any federal or state governmental body or agent that requests information about this Agreement, with notice to the other Party, (3) Any court of competent jurisdiction, with notice to the other Party or (4) any arbitrator or arbitral tribunal before which any dispute or controversy involving this Agreement may be brought.
9.4. Disclosure of Confidential Information is not precluded if such disclosure is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; provided that the other Party will first give notice to owner of the Confidential Information so that the owner can make a reasonable effort to obtain a protective order requiring that the Confidential Information be disclosed only for limited purposes for which the order was issued.
9.5. Notwithstanding anything set forth in this Agreement to the contrary, ADS shall be able to maintain as part of its records in perpetuity any Marketing Company Confidential Information relating to any services it provided under the provisions of this Agreement.
10. Non Solicitation.
Marketing Company acknowledges and agrees that the services of the ADS officers, directors, employees, and contractors are significant and valuable resources of such party. For the entirety of this Agreement, including any subsequent extensions, the Marketing Company will not directly or indirectly:
10.1. Either alone or in association with others: (i) solicit or induce any officer, director, employee, or contractor of the other Party to become an officer, director, employee or contractor of such Party, during and for 1 year after the expiration of the Term (or sooner termination of this Agreement). Marketing Company agrees that the violation of the non-solicitation clause will result in incalculable damages to ADS. However, in the event that the non-solicitation clause is violated, the Marketing Company shall pay, at a minimum, the amount representing three times the annual salary of the former employee to the non-offending party. The minimum amount for violation of the non-solicitation clause does not preclude ADS party to seek all other available remedies including injunctive relief.
11. Miscellaneous Provisions.
11.1. Survival. Sections 3, 4, 5, 6, 7, 8, 9, 10 and 11, shall survive termination of this Agreement.
11.2. Entire Agreement. This Agreement constitutes the entire agreement of the Parties. It supersedes and replaces any prior contemporaneous oral or written understanding as to the subject matter contained in this Agreement and excludes all implied representations, conditions, warranties, and other terms. Each Party acknowledges that it is entering this Agreement because of its own independent investigation and not because of any representation of the other Party contained herein.
11.3. Interpretation. If a court or arbitrator determines any individual provisions of this Agreement void or unenforceable in a final non-appealable decision by an arbitrator or court of competent jurisdiction, the validity of the remaining Agreement shall not be affected. Any provision deemed invalid or unenforceable in a final and non-appealable decision by an arbitrator or court of competent jurisdiction should be severed from this Agreement. In such a case, the Parties shall by mutual agreement substitute for the provisions concerned a provision considered equivalent in economic terms. This Agreement will be interpreted fairly as to all Parties and not in favor or against the Party who drafted it. The Section and Subsection headings used herein are for convenience or reference only, are not a part of this Agreement and are not to affect the construction of, or be taken into consideration in interpreting, any provision of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed to be or shall constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver of any provision of this Agreement shall be binding on the Parties hereto unless it is executed in writing by the Party making the waiver.
11.4. Modification. Except in the case of the Exhibits and a change in an address for notices as set forth below modifications in operating standards as discussed above, changes in the ability to operate in a particular jurisdictions, modifications of or amendments to this Agreement shall be valid only when made in writing and signed by authorized representatives of both Parties.
11.5. Assignment. This Agreement may not be assigned without written consent of the other Party. Notwithstanding the foregoing, ADS may assign its rights and obligations under this Agreement in connection with a change in control transaction.
11.6. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, County of Suffolk without application of choice of laws.
11.7. Counterparts and Facsimile. This Agreement may be executed in counterparts. Each counterpart shall be treated as if it were the single original. A facsimile or electronic signature shall be treated as if it were an original signature.
11.8. Dispute Resolution. All claims or actions for redress of a breach of this Agreement, except to the extent of any claim or action for equitable relief, shall be made and heard only through arbitration proceedings in State of New York, County of Suffolk, to be conducted under the auspices and according to the rules of the Commercial Division of the American Arbitration Association, with such claim to be heard by a single attorney arbitrator experienced with the subject matter of this type of Agreement. The arbitrator‚Äôs ruling shall be final, shall do no more than apply the terms of this Agreement as written, and shall be enforceable in any court of competent jurisdiction. The arbitrator will determine the allocation of the legal fees associated with the arbitration. Any claim or action filed in any forum or tribunal other than the specified Arbitrator, except for a claim or action filed for equitable relief in New York, shall be dismissed upon the motion or request of either Party. In the event of any litigation or arbitration hereunder, the arbitrator or court shall award costs and reasonable attorneys‚Äô fees to the prevailing party. The Parties agree that any breach of the obligations under this Agreement which is otherwise not subject to remedy by monetary damages that will cause irreparable harm will be entitled to injunctive relief and other forms of equitable relief in addition to all other remedies provided in this Agreement or available at law, in any court of competent jurisdiction. This dispute resolution requirement shall survive termination of this Agreement. Any claim must be submitted to arbitration within the earlier of twelve (12) months of termination of this Agreement or twelve (12) months from the date of discovery or shall be void.
11.9. Third Party Beneficiaries. Except in the case ADS subcontracts any portion of its rights or obligations hereunder as well as applicable and Marketing Company’s, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any third-party beneficiary. If ADS or Marketing Company does subcontract, such subcontractor shall be a third party beneficiary under this Agreement.
11.10. Independent Contractor Status. The Parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create a, partnership or joint venture between the parties. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between personnel of one Party and the other.
11.11. Cumulative Remedies. All remedies available to either Party for one or more breaches by the other Party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies.
11.12. Notices. All notices and demands of any kind or nature which either party may be required or desire to serve upon the other in connection with this Agreement shall be in writing and may be served personally, by telecopier, by certified mail, or by commercial overnight delivery (e.g., Federal Express), with constructive receipt deemed to have occurred one (1) calendar day after the mailing, sending or transmitting of such notice, to the following addresses or telecopier numbers: If to ADS: ADS Marketing Partners, LLC Attn.: David Miller/Anthony Torres Telecopier: (631) 750-3058 If to Marketing Company: Attn.: Telecopier: (___)
11.13. Attorneys’ Fees. Should ADS retain counsel for the purpose of preserving, determining, enforcing, or preventing the breach of any rights hereunder, ADS shall be entitled, in addition to such other relief as may be granted, to be reimbursed by the Marketing Company for all costs and expenses incurred, including the payment of attorneys’ fees. [Another big blank check written by the marketer.]
11.14. Effective Date. This Agreement shall be effective as of the date the last Party signs it.
11.15. Execution. THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT; THEY UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES. EACH PARTY AND EVERY INDIVIDUAL SIGNING THIS AGREEMENT REPRESENTS AND WARRANTS THAT THEY ARE FULLY AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT.
MINIMUM ELIGIBILITY REQUIREMENTS INFORMATION TO FOLLOW UNDER SEPARATE COVER
CURRENT JURISDICTIONS FOR WHICH LEGAL SERVICES ARE EXCLUDED NOT AVAILABLE THROUGH THE LAW FIRM
The following States and Localities are EXCLUDED:
- ADVERTISING AND MARKETING STANDARDS AND REQUIREMENTS UNQUALIFIED LEAD IS FORWARDED TO AN APPROVED MARKETING AGENCY
- ADVERTISING AGENT EXPLAINS PROGRAM AND QUALIFIES LEAD
- AN ESIGNED, QUALIFIED LEAD IS SENT TO LAW FIRM FOR REVIEW So a lead is effectively sold prior to any required face-to-face meeting.]
- QUALIFIED LEAD IS REVIEWED AND RETAINER AGREEMENT IS SENT TO CONSUMER DIRECTLY FROM THE LAW FIRM
- CONSUMER COMPLETES RETAINER AGREEMENT AND SENDS DIRECTLY TO LAW FIRM
- ATTORNEY CONTACTS CONSUMER UPON RECEIPT OF RETAINER AND QUALFIFIES LEAD FOR ENROLLMENT
- UPON ATTORNEY CALL, LEAD IS EITHER REJECTED OR ENROLLED