Lead Buyer’s Compliance with Applicable Law.
Lead Buyer represents, warrants and covenants that: (a) it has reviewed all applicable state, federal, Personal/Installment loan specific laws or and regulations governing the relationship between Lead Buyer and any Consumer or Lead acquired pursuant to this Agreement and including, but not limited to:
The Gramm-Leach-Bliley Act, the Safeguards Rule, the EU-U.S. Privacy Shield Framework, the Truth in Lending Act, the Fair Debt Collection Practices Act, the Fair Credit Reporting Act (“FCRA”), the Equal Credit Opportunity Act (“ECOA,” including its implementing Regulation B), the Electronic Funds Transfer Act (including its implementing Regulation E), the Federal Trade Commission Act, the FTC Telemarketing Sales Rule (including without limitation the provisions thereof related to Settlement Services), the Prescreen Opt-Out Notice Rule, and the Red Flags Rule, and further represents, warrants and covenants that it is currently in compliance therewith and will continue to comply there with in connection with any Consumer with whom Lead Buyer engages in any transaction as a result of Ortiz Capital LLC services; (b) it is duly licensed, authorized and certified by all applicable governmental regulatory authorities to operate its business as it is now conducted and, that in connection with any business transacted with any Consumer with whom Lead Buyer engages in any transaction
as a result of Ortiz Capital LLC services under this Agreement, (i) it shall acquire and maintain appropriate licenses, authorizations, and certifications from all applicable governmental regulatory authorities required to perform its obligations hereunder, including those required under the applicable state law of the Consumer's residence, and (ii) no such transaction shall be illegal, void or voidable, in whole or in any part, under the law of the state of the Consumer's residence; (c) all representations made on its respective website regarding its products or services shall be truthful, lawful and not misleading; and
Lead Buyer will comply with all applicable requirements of Section 701(d) (6) of ECOA and Section 615(a) of FCRA relating to the delivery of adverse action notices.
1. Each Party will exercise all due care with respect to Lead Information and the collection, handling, delivery, processing and transmission thereof, including, and without limitation, to confidentiality, security, Privacy Laws, and any consent or authorization necessary to use such information as contemplated hereby.
2. Each Party will maintain appropriate physical, technical and organizational measures to protect all Lead Information against accidental loss or unauthorized access, use, disclosure, alteration, or destruction. Each Party acknowledges that the level of security that is appropriate will depend on the sensitivity of the information, the risks represented by the processing of the Lead Information, the harm that is likely to result from a breach of security, industry standards and applicable law.
3. Each Party will notify the other immediately in writing of any Security Breach. Each Party will provide all necessary and reasonable cooperation to the other to comply with any laws applicable to such Security Breach, including, without limitation, the notification of all Leads who may have a right to be informed of the Security Breach and the investigation and prosecution of such Security Breach.
4. Either Party may disclose Lead Information as required by any applicable law, regulation, rule, court or administrative order or similar legal requirements. In the event of any such required disclosure, the disclosing Party will, to the extent permissible under applicable law, notify the other in advance of such disclosure and cooperate in any effort to minimize the extent of such disclosure and maintain the confidentiality of such Lead Information.
Term, Termination and Survival. The Agreement will commence on the date the Lead Buyer executes this agreement and will continue for an indefinite period unless canceled by Ortiz Capital LLC, Ortiz Capital LLC has the right to cancel contract for any reason without notice.
Representations, Warranties and Covenants of the Parties.
1. Each Party hereby represents, warrants and covenants to the other Party that: (a) it has the full power and authority to enter into the Agreement and to carry out its obligations hereunder; (b) when executed and delivered by such Party, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms and conditions; and (c) it will comply with all federal, state and local laws, rules, and regulations applicable to such party's performance under the Agreement, including without limitation Ortiz Capital LLC compliance with the CAN-SPAM Act of 2003 and all applicable intellectual property laws with respect to Ortiz Capital LLC lead generation activities, and including without limitation Lead Buyer's compliance with any additional or different compliance requirements of Lead Seller.
Restrictions on Marketing Practices
10.1 Text Message Compliance. Lead Buyer, its Affiliates and indirect Affiliates, including all persons using the purchased Leads, are responsible for complying with all federal, state, and local locals, rules, and regulations governing all of their marketing activities, including but not limited to the Telephone Consumer Protection Act (“TCPA”) and Federal Communications Commission rules implementing the TCPA. Lead Buyer hereby understands and agrees that the TCPA makes it unlawful to use any automatic telephone dialing system to make any call or send any text message to any telephone number assigned to a cellular telephone service, unless the call is made for emergency purposes or with the prior express consent of the called party. See 47 USC § 227(b) (1) (a); 47 C.F.R. § 1200(a). Lead Buyer further understands and agrees that the TCPA provides private parties the right to sue any such party responsible for violating its text messaging rules.
Each Party agrees to indemnify, defend and hold harmless the other Party and its directors, officers, shareholders, employees, agents and Affiliates from and against any and all actions, claims, liabilities, damages, losses and expenses (including both third-party claims and claims as between the Parties themselves), including reasonable attorneys’ fees and out-of-pocket costs (collectively, “Claims”) arising out of or related to any alleged breach of this Agreement (including without limitation any alleged breach of any representation or warranty set forth herein or violation of applicable law, and including any alleged breach by Lead Buyer of the lead seller's terms, if Ortiz Capital LLC is not the seller by such Party. In addition, Lead Buyer shall indemnify the lead seller against Claims, including without limitation Claims arising from Lead Buyer's asserted breach of additional or different compliance requirements of the lead seller.
The lead seller is an intended beneficiary of this Agreement and may enforce these indemnification provisions in its own name. The indemnifying Party's indemnification obligations are conditioned upon the indemnified Party: (i) giving prompt notice to the indemnifying Party of the claim or action; (ii) granting to the indemnifying Party of the right to participate reasonably in the defense or settlement of the claim or action (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice or detrimentally impact the indemnified Party in any way); and (iii) providing reasonable cooperation and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim or action.
LIMITATION OF LIABILITY.
EXCEPT FOR ANY THIRD-PARTY INDEMNITY CLAIMS, TO THE GREATEST EXTENT PERMISSIBLE, AND NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT TO THE CONTRARY, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER, REGARDLESS OF WHETHER LEAD BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
The Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law rules. The Parties hereby consent and submit to the exclusive jurisdiction of the federal and state courts located in Monreo County, New York, with respect to any dispute arising under the Agreement or with respect hereto, including any claim to set this Agreement aside in whole or in part.
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