AGREEMENTS & TERMS
The following terms and conditions govern your (“Publisher”) relationship with Refi Mortgage Lead (“Company”) and the use of the Company Lead Platform (“Platform”) and Host and Post program (“Post Program”). The Effective Date of this Agreement is the date in which Publisher receives notification of acceptance as a Publisher and access to the Platform and/or Post Platform.
Company provides access to a proprietary posting access to platform (“Platform”) which contains campaigns for the purpose of promoting/driving traffic to Company and third party products and services (“Advertiser”). Company also provides a proprietary software platform allowing Publisher to post consumer information (“Leads”) to third parties for third party lead generation. (collectively, all third parties shall be referred to as “Advertisers”). Upon approval and access to the Platform, Publisher shall receive the following services (collectively “Services”):
Access to a host and post platform to post Leads to third parties; Tracking identification and scripts unique to each Advertiser campaign; Continuous statistics related to sales generated by Publisher; and Invoicing to Advertisers and payment processing to Publisher.
RESTRICTIONS ON SERVICES.
Publishers seeking to promote third party campaigns including but not limited to text, html and other creatives (collectively “Marketing Content”) may review Marketing Content and terms of promotion on the Platform and accept such Marketing Content for promotion. Publisher shall promote such Marketing Content through Publisher’s promotional marketing media approved by Company (collectively “Promotional Content”). The following restrictions on Publishers apply on all services:
Publisher’s Promotional Content shall comply with all applicable laws, rules and regulations governing the same. Publisher’s Promotional Content must be approved by Company prior to use.
All terms of compensation shall be set forth in an Insertion Order agreed upon between the parties which incorporates this Agreement as though fully set forth therein. Publisher agrees that Company is providing the Ad Platform only and makes no representation or warranty whatsoever pertaining to the quality or legality of Marketing Content posted on the Platform for use by Publisher nor the quality or legality of the Promotional Content used by Publisher or other Publishers. Use of the Platform is at the Publisher’s own risk.
Publisher shall not copy, modify, distribute, transfer, sell, reproduce, publish, display, perform, reverse engineer, prepare derivative works of or otherwise use the Marketing Content or Post Platform (including any data collected therefrom). Publisher shall not resell, redistribute or remarket any of the posted Leads or Lead information generated under this Agreement and placed on Post Platform or attempt to do the same.
The Publisher websites used as Promotional Content shall not contain any: (i) pornographic or offensive material; (ii) software trading, hacking or phreaking content; (iii) illegal content; (iv) Publisher shall not distribute any spyware, adware, trojans, viruses, worms, spybots, keyloggers or any other form of malware.
Publisher is precluded from utilizing Co-Registration, Survey or Incentive marketing practices. To the extent Publisher uses search engine marketing Publisher shall not impede or impair another party’s intellectual property rights and shall otherwise ensure their Marketing Content in full compliance with applicable Law. Publisher shall be solely responsible and liable for their respective website, webpages, marketing content and Promotional Content. Publisher is prohibited from marketing services utilizing SMS or Text Messages.
In connection with performing the services under this Agreement, Publisher will not: (i) engage in the practice of search engine “spamming” (i.e., the inappropriate use of search engine optimization tactics such as doorway pages or cloaking); (ii) provide visitors with any incentive or compensation on the Publisher website (unless the incentive is approved in advance by Company); or (iii) use the Platform in pop-up or pop-under ads (unless approved in advance by Company).
Publisher shall not misrepresent Company or any third party placing Marketing Content on the Ad Platform (or any of their respective products or services). Publishers using the Post Platform shall Post in real time with Leads derived from real persons providing accurate and truthful information. No use of batched Leads or Leads generated from automated means is allowed. Publishers using the Post Platform shall identify and use methods to verify authenticity of Lead prior to posting. Publisher may not use the trade names, logos, trademarks and service marks (“Marks”) of Company or third party unless such Marks are part of the Marketing Content.
Publisher agrees that Company shall have the right to withhold all payment and suspend Publisher’s account immediately upon notice if any traffic of Publisher is received in violation of this Agreement.
- Advertising. Publisher will display the Marketing Content in the exact form in which Company presents it and will not alter, modify, delete, disable or impede the display of the of Campaigns and the Platform in any manner. For Publishers posting Leads, Publisher shall provide the URL which is in use to collect the consumer Lead and shall post user registration, in real time, from the Publisher lead generation website to the Lead Posting Platform in a method and manner as agreed to by Company. Publisher agrees that it will promptly, upon request, modify or alter the Promotional Content or the Platform link or tracking software in accordance with Company’s instructions. Posting Publisher agrees that it will promptly, upon request, modify or alter its Lead Generation Website or Posting link in accordance with Company’s instruction.
- Approval of Promotional Content. Publisher shall provide Company with its Promotional Content including: (i) text, images, web pages, and content on web pages of the Publisher Promotional website; and (ii) search terms, URLs and search result descriptions before being used by Publisher to market the web pages of the Publisher utilizing the Post Platform shall identify the website containing the registration page or Platform link. Post Publisher shall provide URL where Lead is generated for review by Company and shall not make substantial changes to the URL unless notice is given to Company. All URL(s) used for Post Publishing must be in compliance with all applicable laws, rules and regulations.
- Misrepresentation. Publisher shall not misrepresent Company or any third party placing Marketing Content on the Ad Platform (or any of their respective products or services). Publishers using the Post Platform shall Post in real time with Leads derived from real persons providing accurate and truthful information. No use of batched Leads or Leads generated from automated means is allowed. Publishers using the Post Platform shall identify and use methods to verify authenticity of Lead prior to posting.
- Networks and Sub-Publishers. Publisher may use any type of ad or affiliate networks or sub-publishers in promotion of Company Platform, Promotional Content or Marketing Content upon prior written approval of Company. Publishers utilizing the Post Platform shall not transfer or Post Leads derived from third parties without written consent of Company. To the extent Publisher or Posting Publisher utilizes networks or sub-publishers, it shall be fully responsible and liable for all conduct and posting of such third parties and shall fully indemnify Company as set forth in Section 15.
- Acceptable Traffic Sources. Through its promotional efforts to generate traffic to the Post Platform, or third party websites, Publisher may only use the following traffic sources: banner advertisements, organic website traffic, paid search marketing (e.g., Google AdWords), commercial email, mobile, social media. The use of any other traffic source will require Publisher to enter into a separate agreement or an amendment to this Agreement. Non-approved media that will require a separate agreement are co-registration paths or path with consecutive offers (incent or non-incent) , surveys and exit traffic. For the avoidance of doubt, Publisher shall not use unless approved through a separate agreement or amendment: (i) any call centers or otherwise make outbound calls or receive inbound calls.
- Tracking Codes. Company may insert certain tracking technologies, including, without limitation, embedded tags, source codes, links, and pixels (“Tracking Technologies”) within Marketing Content which, among other things, may enable Company to measure the effectiveness and click-through rates of Publisher’s services and to ensure compliance with this Agreement. Publisher shall not, and shall not attempt to, modify, circumvent, impair, disable, restrict or otherwise interfere with any Tracking Technologies. Company may, but is not obligated to, share information or data Company derives from any Tracking Technologies with Publisher for the purpose of enabling Publisher to improve or optimize the effectiveness of its services. Publisher agrees and acknowledges all Tracking Technologies shall be and remain the exclusive property of Company and fall within the confines of Confidential Information as defined herein below. Tracking Technologies will only be made available “as is” without representation or warranty of any kind. If Publisher discovers any errors or nonconformities in any Tracking Technologies, Publisher shall notify Company and Company shall review Publisher’s findings and make corrections Company determines in its sole discretion to be appropriate.
GENERAL LEGAL COMPLIANCE.
- Publisher agrees to provide and use websites, Marketing Content and Promotional Content, as well as, conduct marketing and promotion of Marketing Content, only so long as such use of Marketing Content or Promotional Content is in full compliance with all applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM”), Canada’s Anti-Spam Legislation (“CASL”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529, et seq. (“California’s Anti-Spam Act”), the Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq. (“TCPA”), the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the Child Protection and Obscenity Enforcement Act, 18 U.S.C. § 2257 (“Section 2257”), and any federal or state law or the law of any jurisdiction in which Publisher conducts business or uses Platform or Post Platform under this Agreement (collectively “Applicable Law”) or the Google policies, and shall be solely responsible and liable for the marketing and promotion of such Marketing Content, Promotional Content and the like. In addition, Publisher agrees to abide by and comply with this Agreement.
- Publisher acknowledges and agrees that Company is merely a provider of the Platform and therefore is neither a “sender,” an “advertiser,” an “agency,” or any other similar defined sender or initiator pursuant to CAN-SPAM, CASL, or California’s Anti-Spam Act and that Company serves no function and performs no role in Publisher’s business and promotional activities other than to provide the Platform.
TCPA LEGAL COMPLIANCE.
- Express Written Consents. Post Publishers acknowledge that the 1991 Telephone Consumer Protection Act, as amended (“TCPA”) requires that prior express written consent be obtained before telephone calls can be placed to any wireless telephone number, using an automatic telephone dialing system or before any telephone call can be placed to any telephone number, including residential lines, that includes or introduces an advertisement or constitutes telemarketing using an artificial or prerecorded voice, and evidence of such consent must be recorded, Publisher acknowledges and covenants that, consistent with the TCPA, it will: (a) obtain the prior express written consent (“Prior Express Written Consent”) as required under the TCPA from all leads generated under this Agreement to: (i) receive calls from Company or Company client(s), as applicable, placed to a telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, using an automatic telephone dialing system or an artificial or prerecorded voice; and (ii) receive telephone calls from Company or Company client(s), as applicable, to residential lines using an artificial or prerecorded voice; (b) record said consents if verbal; (c) maintain said consents if written; (d) transfer a record of such consents to Company along with the Posted Lead IP address, date and time stamp and any other information requested by Company; and (e) comply with all other requirements of the TCPA. Publisher will maintain a record of such Prior Express Written Consent for a period of no less than five (5) years from the date of their collection, together with the date such consent was gathered, the name of the campaign in connection with which the consent was collected (“Records”). Upon request, Publisher will promptly provide the Records to Company.
- Insurance. In addition to other insurance requirements that apply to Publisher, Publisher agrees during the term of this Agreement and for a period of five (5) years after the date that the last Express Written Consent record is received by Publisher under each such Prior Agreement, to maintain insurance in such amounts and with such types of coverage as is usual and prudent for a sophisticated, prudent company in Publisher’s industry and to include at the minimum, Commercial General Liability and Umbrella policies with a minimum AM Best Rating of A-VI with coverage for actions of any type brought in connection with telemarketing calls, as defined by the TCPA.
REPRESENTATIONS AND WARRANTIES.
Both Parties. Each party represents and warrants to the other that it has the right, power, and authority to execute, deliver and perform its obligations under this Agreement.
Publisher. Without limiting the generality of the foregoing Section 7.2, Publisher represents and warrants to Company that all Promotional Content shall: (i) be undertaken in accordance with applicable laws, rules and regulations, including but not limited to any government agency rule or regulation or any judicial decree; (ii) not violate any intellectual property or other proprietary right of any third party; and (iii) not contain any content which may reasonably be considered unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent or tortious. Publisher will exercise its best efforts to prevent the introduction through data transmission via modem or any other medium or in the performance of any service hereunder, any virus, worm, trap door, back door, or any other contaminant, or disabling devices including, but not limited to, timer, clock, counter, or other limiting routines, codes, commands, or instructions that may have the effect or be used to access, alter, delete, damage, or disable systems, other software, information, or other property of Company or of the recipients of Publisher’s advertisements hereunder. Publisher shall not sublicense or distribute any Marketing Content or Platform access to a third party without Company’s prior express written permission.
LICENSES AND OWNERSHIP.
- As between Company and Publisher, Publisher owns all rights in: (i) Publisher trademarks; and (ii) Promotional Content.
- As between Company and Publisher, Company owns all right in: (i) Platform, Post Platform and Company Marketing Content as well as all related software and code (“Technology”); (ii) Company’s trademarks and copyrighted Marketing Content; (iii) information posted with lead on the Post Platform; (iv) any goodwill, derivative works, improvements and/or intellectual property associated with the foregoing. Company grants Publisher a nonexclusive, nontransferable, not sub-licensable revocable license to use Post Platform, Platform and Marketing Content solely in connection with Company.
- Publisher will not copy, modify, distribute, sell, or lease access to the Platform, Marketing Content or Promotional Content without written authorization from the owner.
TERM AND TERMINATION.
- This Agreement shall commence upon the acceptance of Publisher on the Platform and shall continue until terminated in accordance with the terms of this Agreement (“Term”). Either party may terminate this Agreement immediately for any reason or no reason by providing notice to the other party. Any revenue due to Publisher as of the date of termination will be paid at the next scheduled payment date.
- Company shall have the right to immediately and without prior notice, suspend, terminate and/or revoke the right of Publisher to use Platform or access or use Publisher’s account on Platform and/or access or use any Marketing Content or Promotional Content if (a) Company, or Company’s other Platform users are subject to, or reasonably likely to suffer, any negative publicity, damage to reputation or goodwill as a result of Publisher’s actions (or failure to act where there is a duty or obligation), including, without limitation, a breach of this Agreement; (b) Publisher fails to comply with any term or condition of this Agreement; (c) there are an above-average number of complaints against Publisher; or (d) without reason at Company’s sole discretion.
- Either party may terminate this Agreement at any time with immediate effect, if the other party is adjudged insolvent or bankrupt; or if proceedings are instituted by or against the other party, including reorganization, arrangement, compromise or settlement under any laws relating to insolvency, assignment for the benefit of creditors, appointment of a receiver, or liquidation or placement in trust of a party’s property or assets.
TRACKING AND PAYMENT TERMS.
- Tracking and Payment Terms for Publishers utilizing the Platform: a. Tracking. The number of Completed Actions, Click-Throughs, or Impressions (or other applicable unit) for which payment is due under each IO, shall be as recorded by Company’s servers or by the servers of a third party mutually agreeable to the Parties and specified in the IO. b. Payment. Company shall pay Publisher for services per the terms of each Campaign. Company shall pay any amounts due as set forth in the applicable IO or if no payment date is set forth in the applicable IO, then approximately fifteen (15) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Advertiser has paid Company for any Program. In addition to any other remedies that may be available to Company, in the event of any breaches by Publisher of this Agreement, Publisher shall forfeit its rights to any amounts owed by Company to Publisher. Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. Company shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Company will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to Company and payments made to Publisher shall be based on the Events as reported by Company. Company will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. Company will require a Publisher to provide a W- 9, and similar such information, as a condition to payment.
- Payment Terms for Publishers utilizing the Post Platform: a. Payment Terms. Publisher will be paid per the terms of each posting program for Valid Leads sold to third party Lead Purchasers. Company shall pay any amounts due approximately fifteen (15) days after the end of each month, less any taxes required to be withheld under applicable law, provided that Company may, in its discretion, withhold payments until such time as the Lead Purchaser has paid Company. In the event Publisher breaches this agreement, Publisher shall forfeit its rights to any amounts owed to Publisher. Company reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by a Lead purchaser for any reason. Company shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions or disputes regarding the data or payout provided by Company needs to be submitted in writing within five (5) business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. Company will not pay for any Lead Posts that occur after a Lead Posting Program terminates leads that were not delivered in real time; leads that are missing or have invalid consumer data; fraudulent leads; leads not posted by an individual or leads that lack the TCPA consent. Invoices submitted to Company and payments made to Publisher shall be based on the reports provided by Company. Company will not be responsible to compensate Publisher for Leads that are not recorded due to Publisher’s error. Company will require a Publisher to provide a W-9, and similar such information, as a condition to payment. b. Definition of Valid Lead. A lead shall be deemed as “valid lead” if it satisfies each of the following requirements, as applicable: (i) originates from one of Publisher’s acceptable traffic sources; (ii) originates from an internet user meeting all applicable criteria (e.g., geographic location, type of good or service sought, etc.); (iii) does not represent a duplicate, inaccurate or incomplete lead; (iv) is not determined by Company to originate from any program where fraudulent, misleading or automated activity was used to generate the lead; (v) does not contain a clearly false name, telephone number or email address; (vi) is not generated through methods that are considered inappropriate by search engines, for example: Search SPAM, cloaking, link farms, hidden text, etc.; (vii) is correctly coded by Publisher; and (viii) meets all other requirements as determined by Company in its sole discretion. Company’s determination of whether a lead is Valid shall be final and binding.
- Monitor and Inactivation. Company actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Fraud traffic includes but is not limited to, click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of Company; ONLY click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported; fraudulent leads as determined and reported by Advertisers; used any incentives to procure clicks or leads; provided leads obtained other than through intended consumer action without prior written approval of Company. (For instance, use of phone books, or similar such compilations of personal data, to complete lead generation forms shall be considered fraudulent behavior.); use of fake redirects, automated software, and/or other fraudulent mechanisms to generate Events from the Programs. If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by Company or use of sites in co-registration campaigns that have not been approved by Advertiser), as determined solely by Company, Publisher will forfeit its entire commission for all programs and its account will be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.
- Forensiq. Company has engaged Forensiq to eliminate fraudulent leads through their real-time fraud detection technology. Forensiq’s technology and sophisticated algorithms allow Forensiq to accurately pinpoint fraudulent activity and non-compliant traffic sources without the need to manually verify lead quality. In the event fraud is detected, Company will provide a detailed report to Publisher that will include: Smart device fingerprinting, proxy unmasking, fraud intelligence database and cloaking detection. Company reserves the right to invalidate leads that fall into “High Risk” category and will not pay for such Leads. Company will work with publisher to educate and interpret reports from Forensiq.
- Adware and Spyware Prohibited. Publisher shall at no time, engage in, disseminate, promote or otherwise distribute, any Company Publisher marketing campaign through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable). This prohibition applies equally to Publisher and any of its business Publishers, publishers, etc. In the event that Company discovers that Publisher is engaging in, disseminating, promoting or otherwise distributing, any Company Publisher-related contextual marketing campaign which results in a violation of the Agreement, then Company may, in its sole discretion, terminate this Agreement and immediately halt any and all Company Publisher-related contextual marketing campaigns, making payment only on legitimate earnings of Publisher as accrued through the date and time of termination. Publisher agrees and acknowledges that if it violates its obligations under this Addendum and/or the Agreement, Company shall be entitled to seek: (i) injunctive relief without the requirement of posting a bond; and/or (ii) any and all other remedies that Company may have at law or in equity.
COMPANY PROVIDES THE AD PLATFORM, LEAD POST PLATFORM AND RELATED SERVICES “AS IS” AND “AS AVAILABLE”. COMPANY MAKES NO GUARANTEE REGARDING THE AMOUNT OF REVENUE OR THE NUMBER OR QUALITY OF ADS, IMPRESSIONS, CLICKS, TRANSACTIONS, OR OTHER USER-ENGAGEMENT METRICS THAT THE SERVICES MAY ACHIEVE. TO THE EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, THAT MARKETING CONTENT PROVIDED BY PUBLISHERS WILL PERFORM OR WILL BE IN COMPLIANCE WITH ANY APPLICABLE LAWS, OR THAT SERVICES AND ADS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY IS NOT RESPONSIBLE FOR THE MARKETING CONTENT, ADS, ADVERTISER WEBSITES, PRODUCTS OR SERVICES PROVIDED BY ADVERTISERS. THESE DISCLAIMERS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY LAW AND EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND BREACH OF EACH PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR PARTNERS, BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH PARTY, ITS AFFILIATES OR PARTNERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH PARTY ACKNOWLEDGES THAT THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. IN NO EVENT SHALL COMPANY’S LIABILITY EXCEED $10,000.00.
- Security. Publisher shall ensure that all Publisher websites and all consumer information collected thereon shall be secure and will use administrative, technical and physical safeguards in compliance with federal standards and standards generally accepted in the industry to ensure the security and confidentiality of all information collected by Publisher, to protect against anticipated threats or hazards to the security or integrity of such information, and to protect against unauthorized access to or use of such information. Publisher shall immediately notify Company in the event of a security breach or a threatened security breach relating to the Publishers performance of Services under this Agreement and shall cooperate in good faith to resolve any such security breach promptly thereafter.
- “Confidential Information” means the terms of this Agreement and any technical, marketing, financial, employee, planning, and other confidential or proprietary information, including customer and supplier lists, the suppression or do not mail lists provided by Company or Advertisers to Publisher, and any information that: (i) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Confidential Information does not include information that: (i) is or has been independently developed by the receiving party without access to or use of the other party’s Confidential Information; (ii) is or has become publicly known through no breach of this Agreement by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; or (iv) has been approved for release in writing by the disclosing party. Each party agrees that: (i) it will not disclose to any third party or use the Confidential Information of the other party except as expressly permitted in this Agreement, where required by law or judicial process, or with the other party’s prior written consent and provided that the party to whom the information will be disclosed has agreed to confidentiality restrictions no less stringent than those herein contained; and (ii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own Confidential Information. Each party shall promptly notify the other of any request or demand by any court, governmental agency, or other individual or entity asserting a demand or request for Confidential Information, so that such party may seek an appropriate protective order. If a party or any of its employees, representatives or agents attempts to use or disclose any of the Confidential Information in contravention of this Agreement, then, in addition to other available remedies, the party who owns the Confidential Information shall have the right to seek injunctive relief enjoining any such attempt, it being acknowledged that legal remedies are inadequate. Upon the earlier to occur of termination of this Agreement or the request of the disclosing party, the receiving party shall destroy or return all of the disclosing party’s Confidential Information to the disclosing party.
- Notwithstanding anything to the contrary herein, nothing in this section shall limit Publisher’s obligations or permit disclosures by Publisher that are prohibited elsewhere in this Agreement. This section shall survive the termination of this Agreement.
- Publisher, at its own expense shall indemnify, defend, and hold Company harmless and its employees, directors, officers, representatives, agents, ad providers, and affiliates against all third-party claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses, (“Claim” or “Claims”) including but not limited to those directly or indirectly as a result of (a) Publisher’s or any network, affiliates’ or sub-Publishers’ breach of this Agreement; or (b) Publisher’s, networks or any affiliates’ or sub-Publishers’ violation of any Applicable Law; or (c) any content, goods or services offered, sold or otherwise made available by Publisher to any person as part of its promotion or marketing campaigns; or (d) any violation by Publisher of any rights of another, including breach of a person’s or entity’s intellectual property rights.
- Company shall control the defense including retention of counsel and experts but will not enter into any settlement or compromise of any Claim without Publisher’s prior written consent, which shall not be unreasonably withheld. Publisher will pay any and all costs, damages, and expenses, including, but not limited to, actual attorneys’ fees and costs expended by Company or awarded against or otherwise incurred by Company in connection with or arising from any Claim.
- Marketing/Press Releases/Public Announcements. Neither party will issue any publicity, press release, or other public statement without the prior written consent of the other party.
- Disparagement. Publisher will not engage in any action or practice that reflects poorly on Company and/or other Publishers, or otherwise disparages or devalues Company and/or other Publisher’s reputation or goodwill. Publisher will not disparage Company during or after the Term of this Agreement.
- Solicitation. Publisher shall not utilize Company’s Marketing Content as a prospecting tool for purposes of soliciting Company’s Publishers or Advertisers. Publisher shall not utilize Company’s Promotional Content as a prospecting tool for purposes of soliciting Company’s promotional Publishers or their partners. During the Term of this Agreement and for a period of one (1) year post termination, Publisher agrees that it shall not solicit any of Company’s employees, consultants or representatives to leave the employment of Company without the prior written consent of Company.
- No Other Representations; Written Amendment. There are no representations, warranties, conditions, interpretations, or other agreements, express or implied, statutory or otherwise, between the parties in connection with the subject matter of this Agreement, except as specifically set forth herein. Publisher agrees that Company shall not be responsible for, be bound by or liable to Publisher for any statement made directly or indirectly by an employee, affiliate, consultant, or representative of Company that contradicts, repudiates, misinterprets or excuses Publisher from complying with any term of this Agreement. If Publisher has any concerns or desires to make any changes to the terms of this Agreement, the parties shall negotiate in good faith to enter into a written Amendment Agreement executed by both parties to affect the intent of the parties.
- Excusable Delays. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its control and without its fault or negligence.
- Assignment. Neither party may assign this Agreement without the written consent of the other except that a party may assign this Agreement to an acquirer of all or substantially all of that party’s business or to an entity that is controlled by, under common control with or controls such party. The parties are independent contractors and this Agreement does not create an agency, partnership, or joint venture.
- Notices. Notices must be in writing and will be deemed given when: (i) delivered personally; or (ii) sent by email, if to Publisher to the email address on the first page of this Agreement and if to Company to the following email address: RandyBossLeads@gmail.com
- Governing Law; Binding Arbitration. This Agreement is governed by the laws of the State of the California excluding all conflict of laws rules. All claims arising out of or relating to this Agreement and/or the Services will be resolved by Binding Arbitration (and the parties hereby consent to personal jurisdiction) in the State of Colorado, County of Denver, in accord with the Commercial Dispute Resolution Procedures of the American Arbitration Association and the Optional Rules for Emergency Measures of Protection. The arbitration will be decided by a single arbitrator whose decision will be final and binding and may be enforced in any court of competent jurisdiction. The prevailing party is entitled to reasonable attorneys’ fees and costs. The arbitration will be kept confidential except as required by law.
- Notice of Potential Liability. Publisher will inform Company within one (1) business day of becoming aware of any actual or threatened lawsuit, governmental investigation or other governmental action related to Publisher, or marketing or promotional campaigns run by Publisher. Company reserves the right to investigate any activity that may violate this Agreement.
- Entire Agreement. This Agreement combined with any applicable IO constitutes the entire agreement between Company and Publisher regarding the subject matter of this Agreement. No prior or contemporaneous written, electronic, or oral representation form a part of this Agreement, and this Agreement supersedes any and all prior and contemporaneous electronic, oral or written agreements, negotiations, understandings, and representations made by Company and Publisher relating in any way to the subject matter of this Agreement. If any provision of this Agreement is found unenforceable, the balance of this Agreement will remain in full force and effect and the unenforceable provision will be interpreted to be as close to the parties’ intention as possible while still being enforceable. Publisher must bring any claims in its individual capacity and not as a plaintiff or member in any class action or similar proceeding.
- Sections and Headings. The division of this Agreement into Sections, Subsections, Appendices, Extensions and other Subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be used in the construction or interpretation of this Agreement.
- Electronic Signature. Publisher acknowledges and agrees that by clicking on the button labeled “Agree,” “Finish,” “Submit,” or such similar links as may be designated by Company to accept these terms and conditions, Publisher is submitting a legally binding electronic signature and are entering into a legally binding contract. Publisher acknowledges that its electronic submission constitutes its agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”) or other similar statutes, PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY COMPANY. Further, Publisher hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.