This Master Services Agreement (“Agreement”) is made and entered into by and between Next Call Club, LLC (“Next Call”) and Agent (“Agent” or “Client”). Next Call and Agent are referred to herein as a “Party” individually and the “Parties” collectively. This Agreement becomes effective on the date the Agent signs this Agreement (the “Effective Date”). By signing below, Agent agrees to be bound by the terms of this Agreement and any attached Statements of Work.
Section 1: Scope of Services
1.1 Services. Next Call agrees to provide the services described in each Statement of Work (“Services) executed by both Parties. All services shall be completed in a professional, workmanlike manner consistent with industry standards. Each Statement of Work ("SOW") is incorporated into and made part of this Agreement. In the event of a conflict between this Agreement and an SOW, the terms of the SOW shall govern to the extent of such conflict. The Services may include Next Call Club providing personally identifiable information and/or other information associated with a consumer that is delivered by Next Call to Agent for the purpose of enabling Agent to contact and market its products or services to the associated consumer ("Lead Data"). "Leads" means Lead Data associated with specific consumers.
1.2 Statements of Work. Additional Services may be added by executing new SOWs, which become part of this Agreement upon execution by both Parties.
Section 2: Term and Termination
2.1 Term. The term of this Agreement (the “Term”) begins on the Effective Date and continues until the first anniversary thereof, automatically renewing for successive one-year periods unless either Party provides at least thirty (30) days’ written notice of non-renewal prior to any anniversary date. Either Party may terminate this Agreement, for any reason, when all SOWs have expired or been terminated by providing at least two (2) business days’ prior written notice.
2.2 SOW Term. The term of each SOW is specified therein, provided that no SOW term may extend beyond the termination or expiration of this Agreement. All SOWs terminate immediately upon termination of this Agreement.
2.3 Termination of SOW Services. Termination of services provided on a month-to-month basis under any SOW is effective only on the last day of a calendar month and requires written notice delivered on or prior to the last day of the preceding month. Termination of services prior to the expiration of any minimum term specified in an SOW requires Next Call’s prior written consent. Change requests to SOW services must be made in writing at least thirty (30) days in advance and are subject to acceptance by Next Call in its sole discretion.
Section 3: Fees and Payment
3.1 Fees. Agent shall pay the fees set forth in each applicable SOW (“Fees”). Fees are non-refundable and there is no provision for credits, except as expressly stated in an SOW.
3.2 Invoicing and Payment. All invoices are due and payable within thirty (30) days of the invoice data . Interest accrues at 1.5% per month on amounts unpaid more than thirty (30) days after the invoice date. Declined or reversed credit card charges are subject to a $35 service fee per occurrence. Next Call may require a credit card on file for recurring charges as specified in the applicable SOW.
3.3 Credit Card Authorization. Next Call may, at its option, require Agent to place a credit card on file with Next Call in exchange for Agent's access to the services. If Next Call accepts such a form of payment, all Agent incurred charges will be debited to the credit card number that Agent provides to Next Call no later than ten (10) days after the invoice date. Should an Agent's credit card number expire, or should Next Call otherwise be unable to debit valid charges to an Agent's provided credit card, Next Call may immediately and without notice suspend Agent's access to the services. Next Call may take commercially reasonable actions to validate an Agent's credit card.
3.4 Suspension of Services. Next Call may suspend services if Agent breaches this Agreement or has unpaid obligations, and may require a deposit of future sums to resume services. Next Call may apply any payment to any outstanding obligation more than ten (10) days past due.
Section 4: Independent Contractor; Performance
4.1 Independent Contractor. Next Call is an independent contractor and not an employee, agent, partner, or joint venturer of Agent. Agent shall not withhold taxes or provide employee benefits for Next Call. Next Call is solely responsible for its own tax and insurance obligations and payment of its employees.
4.2 Personnel. Next Call may designate any of its team members to perform services. Agent is retaining the services of Next Call and not any individual consultant or employee.
4.3 Place of Performance. All services are deemed solicited, purchased, and performed in Fulton County, Georgia, regardless of where Agent is located or whether services are delivered remotely.
Section 5: Confidentiality
5.1 Definition. “Confidential Information” means any non-public information disclosed by one Party to the other in connection with this Agreement, including business plans, financial data, customer data, marketing strategies, pricing, employee information, technical data, and trade secrets, whether communicated in writing, orally, or electronically.
5.2 Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving Party; (b) was already in the receiving Party’s possession; (c) is independently developed by the receiving Party; or (d) is lawfully obtained from a third party without restriction.
5.3 Obligations. Each Party shall protect the other’s Confidential Information with at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care. Neither Party shall use or disclose the other’s Confidential Information except as necessary to perform under this Agreement.
5.4 Permitted Disclosures. Disclosure is permitted to accountants, attorneys, and in response to legal process or governmental inquiry, provided the disclosing Party notifies the other Party (to the extent legally permitted) and cooperates in seeking protective orders.
5.5 Injunctive Relief. Either Party may seek injunctive relief, without posting a bond, to prevent actual or anticipated breach of this Section.
Section 6: Intellectual Property
6.1 Next Call Club Intellectual Property. In the course of performing services, Next Call may provide Agent with access to templates, scripts, manuals, reports, and other intellectual property belonging to Next Call (“NCC IP”). Agent may use NCC IP solely for Agent’s own business purposes within the scope of the applicable SOW.
6.2 Restrictions. Agent shall not, during or after the term of this Agreement, directly or indirectly, share, publish, duplicate, or disclose NCC IP to any person, or use NCC IP to offer consulting, coaching, or training services to others, or permit any third party to do so.
Section 7: Representations and Warranties
7.1 Compliance. Agent shall comply with all applicable laws and regulations, including without limitation the Telephone Consumer Protection Act ("TCPA"), the Telemarketing Sales Rule ("TSR"), Fair Credit Reporting Act ("FCRA"), CAN-SPAM, California Invasion of Privacy Act ("CIPA"), California Consumer Privacy Act ("CCPA"), CPRA, Colorado Privacy Act ("CPA"), Equal Credit Opportunity Act ("ECOA"), and all applicable state privacy, telemarketing, and do-not-call laws (collectively, “Applicable Laws”). Agent warrants that it will seek appropriate legal counsel regarding all Applicable Laws before making any calls or texts.
7.2 Lead Usage. Agent shall not contact Leads provided by Next Call after ninety (90) days of receipt. Agent shall honor all consumer do-not-call requests. Next Call shall not be responsible for claims arising from Agent’s contact of Leads after 90 days or after a consumer’s do-not-call request.
7.3 Notification. Agent shall notify Next Call within two (2) business days of becoming aware of any potential or actual lawsuit relating to Next Call.
7.4 Do-Not-Call Records. Next Call will maintain records of all consumer do-not-call requests received during any Connect Period and will not transfer lead information for consumers who request not to be contacted.
Section 8: Complaints
If Agent becomes aware of any complaint, claim, investigation, or inquiry involving the services under this Agreement, including allegations of illegal conduct or actions that could expose Next Call to liability (each, a “Complaint”), Agent shall: (a) promptly notify Next Call in writing with all available details; (b) not respond to third parties regarding claims implicating Next Call without Next Call’s prior approval (unless prohibited by law); and (c) promptly restrict any personnel connected to the Complaint from performing services. Failure to provide required notice constitutes a material breach. Agent shall cooperate with Next Call in connection with any third-party claims.
Section 9: Limitation of Liability
EXCEPT FOR DAMAGES ARISING FROM (i) WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; (ii) INDEMNIFICATION OBLIGATIONS; OR (iii) BREACH OF SECTION 5 (CONFIDENTIALITY), NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVIEW OR ANTICIPATED PROFITS WHETHER IN CONTRACT OR TORT.
Section 10: Indemnification
10.1 Scope. Each Party (as “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and its officers, directors, employees, agents, and affiliates (collectively, “Indemnified Party”) from all losses, damages, liabilities, claims, judgments, costs, and attorneys’ fees arising from any third-party claim resulting from the Indemnifying Party’s breach of this Agreement (“Claim”).
10.2 TCPA Consent Claims. If a Claim alleges that a Lead sold by Next Call lacked TCPA consent, and Next Call can demonstrate with competent evidence that valid consent was obtained, Next Call will support Agent’s defense and provide documentary proof but shall not defend, indemnify, or hold harmless Agent unless a court of competent jurisdiction determines that Next Call did not obtain valid consent. Next Call shall not indemnify the Agent under any circumstances for Claims alleging violation of the TSR.
10.3 Procedures. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any Claim. Failure to notify within fourteen (14) days constitutes a waiver of indemnity obligations. The Indemnifying Party shall not owe indemnity if the Indemnified Party responds to a Claim before permitting the Indemnifying Party to assume the defense. The Indemnifying Party may assume defense of any Claim within 14 days of notice, using counsel of its reasonable choice. The Indemnified Party may participate at its own expense. The Indemnifying Party shall not have sole control over Claims seeking equitable relief against the Indemnified Party or where a conflict of interest exists, and shall obtain written approval before settling any Claim involving equitable relief.
Section 11: Insurance
Prior to the Term, Agent shall provide Next Call with it's current commercial insurance coverages. Next Call reserves the right to request additional coverages from Agent based upon Agent's selection of the specific Services.
Section 12: Non-Solicitation
Neither Party shall, during the Term and for two (2) years thereafter, directly or indirectly solicit for employment the directors, officers, or employees of the other Party; provided, however, that general solicitations not directed toward the other Party’s personnel shall not be restricted. Each Party acknowledges that money damages would be insufficient for breach of this provision and the aggrieved Party shall be entitled to seek specific performance and injunctive relief without posting a bond, in addition to all other remedies available at law or in equity.
Section 13: Public Disclosure
Neither Party shall make any public announcement regarding this Agreement without the other Party’s prior consent, except as required by law. If legally compelled to disclose, the disclosing Party shall consult with the other Party in advance and seek confidential treatment where reasonably requested. This provision does not apply to communications with legal or accounting advisors.
Section 14: Dispute Resolution
The Parties will submit any dispute arising out of or relating to this Agreement that cannot be resolved by good-faith negotiation, including the determination of the scope or applicability of this agreement to arbitrate, to be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, in Fulton County, Georgia. Each Party shall bear its own costs, including attorneys’ fees. BY AGREEING TO THIS PROVISION, EACH PARTY WAIVES THE RIGHT TO HAVE ANY DISPUTE SETTLED IN COURT OR BY JURY TRIAL.
Section 15: General Provisions
15.1 Governing Law. This Agreement shall be governed by Georgia law. Subject to the arbitration provision above, any suit related to this Agreement shall be brought in Georgia.
15.2 Entire Agreement. This Agreement and each SOW constitute the complete agreement between the Parties regarding the subject matter hereof, superseding all prior agreements and understandings. No terms in purchase orders, click-wrap agreements, or other documentation shall modify this Agreement unless expressly stated in an SOW and initialed by both Parties.
15.3 Amendment. This Agreement may be amended only by a written instrument executed by both Parties.
15.4 Assignment. Neither Party may assign this Agreement without the other’s prior written consent, except to a person or entity acquiring all or substantially all of the assigning Party’s assets.
15.5 Good Faith. Both Parties agree to deal honestly and in good faith in their performance of this Agreement.
15.6 Notices. All notices shall be in writing and delivered to the addresses set forth in the applicable SOW. Notices are effective when confirmed by return email or when delivered personally, by commercial delivery service, or three (3) days after sending via certified mail or overnight carrier.
INTENDING TO BE BOUND, the Parties have hereunto set their hands to this Agreement by and through their authorized representatives to be effective as of the Effective Date.