MASTER SERVICES AGREEMENT
RECITALS
The Parties wish to enter into this Agreement for the purpose of governing various services to be provided by Publisher to Agency’s clients (each, a “Client” and collectively, “Clients”), which may include but not be limited to Publisher obtaining Leads (defined below) for Clients through Campaigns (defined below).
Agency desires to engage Publisher to provide the services described herein, and Publisher desires to provide the services described herein, subject to the terms and conditions set forth below.
In consideration of the foregoing, the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending legally to be bound, covenant and agree as follows:
AGREEMENT
Orders. The above recitals are hereby incorporated by reference. The particular services to be provided by Publisher will be more fully described in an Insertion Order, the form of which is attached hereto as Exhibit A (each, an “Order”). The terms of this Agreement shall govern all Orders. In the event of any discrepancy between the terms of this Agreement and Order, the particular terms in question contained in the Order shall control.
Services. The services to be provided by Publisher include online and offline campaigns promoting or advertising a Client’s goods and/or services (“Offers”), for the purpose of generating Leads for the Client (each, a “Campaign”). As used herein, the term “Lead” shall mean a potential customer lead who has consented to be contacted via telephone by Client for the purpose of Client offering its goods and/or services to the Lead. Publishers shall perform the services as described in the Order in a timely and workman like manner. The services to be provided by Publisher in an Order may be provided directly by Publisher or through third-party vendors or partners designated by Publisher. The Parties shall work in good faith using commercially reasonable efforts to achieve all deadlines, goals, estimates, and costs set forth in the Order. In the event Agency desires to change or expand any of the services or deliverables under an Order, or shorten any applicable timelines, a written agreement between the Parties will be signed prior to commencement of the work or change, and Publisher reserves the right to charge all reasonable costs associated with such change. Any revisions to an executed Order will be made in writing and acknowledged by the other Party in writing.
Qualified Lead Criteria. To be deemed a “Qualified Lead” eligible for payment by Agency, the Lead must contain valid user data and fully satisfy each of the criteria as specified in this Agreement and the relevant Order. In addition to any other requirements set forth in this Agreement or the relevant Order, a Lead delivered to a Client pursuant to an Order shall be deemed a “Non-Qualified Lead” for which no fee or payment shall be due Publisher if any of the following are true about the Lead:
Has not provided “prior express written consent”, as required under the Telephone Consumer Protection Act, the Amended Telephone Consumer Protection Act of 1991, and their state law equivalents (collectively, “TCPA”), to be contacted by the Client;
Includes a phone number or email address that does not function, is not owned by, assigned to or registered in the name of the user identified on a website form;
Does not satisfy the necessary information requirements initially set forth in this Agreement or any existing Order that deem it to be a qualified lead;
Each Lead provided hereunder shall come with a TrustedForm Certificate URL or Jornaya Lead ID;
Unless otherwise noted in an Order, all Leads provided to Agency hereunder shall be exclusive to Agency or its designated Client(s) and shall not be shared by Publisher with any other party;
Includes false or invalid information, as determined by Agency and/or Client in their sole discretion;
Is generated using a form or placement within an incentivized traffic flow (e.g. where the user is offered a gift, prize, or other value for completing and/or submitting information);
Is generated using a form or placement where the user is forced to make a selection from a list of offers in order to proceed or advance to another page or step in a process;
Is generated using a form or placement that has been pre-selected or “pre-checked”;
Is generated using any form, process or placement that is fraudulent in nature, intended to deceive or mislead, or that is generated by anyone other than an individual, human internet user;
Is generated using any form, process or placement that in any way violates any provision of Section 4 hereof; and/or
Is generated pursuant to an activity or process otherwise deemed a breach of any component part of this Agreement.
Publisher’s Representations and Warranties. Publisher represents and warrants that:
It has full power and authority to enter into this Agreement and the person executing the Agreement is doing so on behalf of Publisher and has all power and authority to bind Publisher to this Agreement;
Entering into and performance of this Agreement by Publisher does not violate, conflict with, or result in a material default under any other contract or agreement to which Publisher is a party, or by which it is bound;
The sources of Publisher and its Partners (defined below), if any, by which Leads are delivered do not and shall not infringe, violate or misappropriate any third-party copyright, patent, trade secret, trademark, or other property right, nor display, publish or promote sexually explicit content, intolerance, violence or hate or constitute libel, defamation, invasion of privacy or the violation of any right of publicity of any third party;
Its performance hereunder shall not violate any applicable international, foreign, federal, state or local law, rule, regulation, order or ordinance; and
All Leads provided to the Agency shall be fully compliant with the TCPA.
Agency Representations and Warranties. Agency represents and warrants that:
It has full power and authority to enter into this Agreement;
Entering into and performance of this Agreement by Agency does not violate, conflict with, or result in a material default under any other contract or agreement to which Agency is a party, or by which it is bound; and
The Content, in form provided by Agency, does not and shall not infringe, violate or misappropriate any third-party copyright, patent, trade secret, trademark, property or privacy right.
Content.
All creative assets, in any form or medium, provided to Publisher by Agency or Client (collectively, “Content”), may not be altered or amended in any way without the prior written approval of Agency. Content is to be used only in combination with sources authorized by the Agency. Tracking URLs, campaign code and/or links provided by Agency may not be altered without prior written approval by Agency. In the event Publisher is authorized in writing to independently develop Content hereunder, such development shall be in strict conformance with the provisions of the Agreement below and shall be deemed “works-made-for-hire.”
Agency shall submit the Content to the Publisher in accordance with the Agreement. If Content is damaged or otherwise non-functioning, Publisher shall notify Agency within two (2) business days of receipt, thereof.
Publishers shall not edit or modify the Content in any way without Agency's prior written approval. Publishers shall use all such materials in strict compliance with this Agreement and any written instructions provided by the Agency.
Agency reserves the right to make Content rotation changes with 72 hours’ prior written notice to Publisher.
Any ad copy, landing page, microsite, banner ad, email, lead form or placement, URL or other material conceived and/or developed by Publisher (“New Content”) individually or in conjunction with others that is based on or contains any Content shall be deemed “works-made-for-hire”. While there is no transfer of trademarks or copyrights to Publisher, upon approval by Agency, Publisher may exclusively run New Content without royalty or other consideration to Publisher. Publisher shall develop New Content at its sole expense.
To the extent Publisher is authorized to use or display Content in the performance of the Services under the Agreement, Agency grants to Publisher a limited, non-exclusive, revocable, royalty-free right and license to use, display and reproduce Client's trademarks, service marks, logos, copyrights and proprietary ad copy on its servers and in such media and collateral materials as authorized by Agency in writing, all for the purpose of promoting the Client’s programs and services as herein contemplated. The license granted hereunder shall terminate upon the earlier of the termination of Publisher’s participation in the Campaign(s) or termination of this Agreement. Except for the limited license granted herein, Agency and/or Client retain(s) all proprietary rights in and to all of its intellectual property. Publisher’s use of such property pursuant to the license herein granted shall insure to the benefit of Agency and/or Client; Publisher retains no rights or interest in or to such property.
All creative design and content, including, but not limited to, art, ideas, slogans, and other work products, produced by Publisher while performing the Services under this Agreement (“Publisher Materials”) shall be approved in writing by Agency prior to its use; provided, however, that Publisher shall in no circumstances run Publisher Materials unless an affirmative approval has been made in writing by Agency. In the event Publisher Materials are rejected by the Agency, Publisher shall take all steps necessary to remedy the non-conforming aspects of the same in compliance with the reasonable requirements of the Agency. Agency’s acceptance of Publisher Materials does not release Publisher from liability in the event the non-creative related aspects of the Publisher Materials infringe upon the intellectual property rights of any third party.
Publisher’s breach of any provision of this Section 6 shall be deemed a material breach of this Agreement.
Placement Positioning and Requirements.
General. Publishers shall comply with the placement positioning, display, editorial, use and conduct criteria set forth in this Agreement or any Order.
Material Changes. Publishers shall use commercially reasonable efforts to provide at least ten (10) business days’ prior notice of any material change to the editorial content, display, design or architecture of all sources used to provide services under a Campaign or delivery of any Lead. A material change is defined as any change in editorial content, display, design or architecture that would change the target audience or significantly affect the services.
Placement Restrictions. Unless otherwise approved in advance by Agency in writing:
Content may not be placed adjacent to or on the same page as editorial or display content containing or promoting violence, sexual exploitation, profanity, racism, sexism, religion, gambling, pornography, hate speech, or any other subject matter that Agency deems in its sole reasonable discretion to be controversial or inappropriate.
Content may not be placed adjacent to or within incentive-based content, processes or traffic flows (i.e., sites that give points, entry into sweepstakes or contests, or other incentives or consideration for completing registrations or taking any other desired action such as ordering certain promotional offers).
Use of adware advertising, co-registration processes, survey sites or sequential-registration where data is simultaneously captured for multiple, sequentially arranged advertisers is prohibited.
Unless separately authorized in writing, the use of a call center in any form to contact users prior to delivering Leads to Agency is prohibited.
Email. Publisher shall be solely responsible for insuring that all email services provided to Agency complies in all respects with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), as amended, and all applicable state, local, and international laws, rules and regulations, including but not limited to the Canada Anti-Spam Legislation (“CASL”). Without limiting the generality of the foregoing, Publisher shall:
Opt-In Required. The recipient shall have “opted-in” to receiving email from Publisher and its Partners. This “opt-in” shall be, at a minimum, as defined under the CAN-SPAM Act and applicable state and local laws, rules and regulations, unless conducting campaigns in Canada which would fall under the CASL “opt-in” requirements. Publisher and its Partners shall use commercial standards to ensure that their emails lists are of the highest integrity and best commercial use for purposes of providing email marketing services for the Client. Whenever possible, Publisher and its Partners shall utilize “double opt-in” standards for users joining email lists to ensure that the lists are of the highest possible quality. Publishers shall promptly provide Agency upon request with proof of a user’s valid opt-in that contains, at minimum, a valid time/date stamp, user IP, user opt-in URL, and source IP.
Test Email and Content Rotations. Prior to sending the first email for an Order or a new Content suite under the same Order, Publishers must send a test email and obtain written approval by the Agency. If Publisher or its Partners desire to change any email content with approved Content within the Platform, including without limitation, using new content, from and subject lines, or links, Publisher must obtain a new written approval by Agency prior to emailing. This new approval will not be required if the Publisher sends the original email to a new data record or email list, but no content of the email has otherwise changed. Notwithstanding the foregoing, Publishers shall still be required to comply with Section 6(d)(vii)(1) regarding notice and approval of Partners. Agency reserves the right to review each email prior to every new email drop, whether or not email content was changed.
Opt-Outs. Each email shall contain a clear, conspicuous, simple to use, fully functional removal mechanism conforming in all respects to the requirements of the CAN-SPAM Act that allows the recipient to automatically opt-out of receiving future emails from Publisher and its Partners. Publisher shall use the advertiser-specific opt-out language and links (“Advertiser-Specific Opt-Out”) exactly as they are provided by Publisher, which shall be placed at the footer of the email as directed by Publisher. In addition to the Advertiser-Specific Opt-Out, Publisher shall also include opt-out language and links for the entity actually sending the email, whether it is Publisher itself or a Partner (“Publisher-Specific Opt-Out”). Adjacent to the Publisher-Specific Opt out, Publisher or the Partner must include language making it clear to the average email recipient that there are two opt-out links and that clicking on the Publisher-Specific Opt-Out may only result in being unsubscribed from the publisher’s list and not the advertiser’s list. All Opt-Outs shall be in text format only and in no other format, including, without limitation, as an image or images.
Email Suppression File. Publishers may access the Client’s suppression file in the Platform. Publisher and its Partners shall download the suppression file, using MD5 hashing technology, prior to the start of a campaign and not to exceed every seven (7) calendar days for ongoing campaigns. Any user unsubscribe requests (a) generated from either Advertiser-Specific or Publisher-Specific Opt-Outs, (b) otherwise provided by the user to Publisher or its Partner, or (c) provided by Agency/Client to Publisher/Partner, shall be added to the appropriate Client suppression file by Publisher within seventy-two (72) hours of receipt of such requests and in any event in a manner conforming to the requirements of the CAN-SPAM Act and this Agreement. Such compliance shall include Publisher shall provide Agency with written proof of such compliance upon request.
Only Approved Content May Be Used. All from and subject lines and other email Content must be approved by the Agency prior to mailing. All approved from and subject lines and other email Content will be available to Publishers in the Platform. Publishers may not alter any from lines, subject lines, Opt-Outs, or any other Content in any way. Without limiting the foregoing, Publisher and Partner may not:
Add special characters, add or delete spaces, add or remove dashes or underscores, use misspellings or alternate spellings, add the name or email address of the recipient, or add or delete any other text or language in the from lines and subject lines;
Use Content images in any format other that what is provided in the Platform, such as, without limitation, rendering the entire email to a single image, change or degrade the quality, resolution, or size of the Content, or otherwise reconfiguring the number or use of the Content images; and
Other than the Publisher-Specific Opt-Out, add any other image or text elements that are not approved, including without limitation, any scrolling text or bars, links, HTML or other computer code, any random or nonsense words in the HTML code or in the body of the email, any images, logos, watermarks, colors or coloring, flash or animations.
Email Pacing. All email campaigns sent on behalf of a Client may only be sent to a specific user email address no more than once per twenty-four (24) hours.
Contact Information. Each email delivered by or on behalf of Publisher shall include CAN-SPAM Act-compliant contact information and such additional information or disclosure as individual state laws may require. Any postal addresses provided in the email must be United States or Canada addresses.
Internal and External Lists. Publisher shall only send email to those email lists under its own immediate control, and shall conduct all mailings using mail servers and other related software/equipment under its own technical ‘in-house’ control; Email Service Providers (ESPs) which are under the direct control of Publisher are permissible. Unless previously authorized in writing, Publisher may not contract with any third-party mailer, list manager or list owner (i.e., Partner) to deliver Leads via email. If Publisher has been separately authorized in writing by Agency to distribute email through Partner, Publisher shall:
Inform Agency in writing, prior to the sending of email, the name of the Partner and the complete delivery schedule, including without limitation what dates email will be sent and approximately how many emails will be sent on each date. Agency reserves the right to alter the delivery schedule or require Publisher to not use or stop using a Partner at any time;
Require the Partner to comply with the requirements of this Section; and
Require the Partner to provide Publisher and Agency complete and total transparency with respect to all aspects of the Partner’s development and management of such email lists.
Sending Domains. Each email sending domain shall not be registered anonymously or by proxy, but instead shall be registered publicly utilizing an actual and real: (a) contact name, (b) physical address, (c) phone number and (d) email address by which the public can actually and directly contact the entity which sent the email. All sending domains must be United States or Canada domain names. Such domains must be registered within the United States or Canada. Sending domains must not contain any offensive, violent or controversial content and must otherwise conform with Section 7.e.i. hereunder. Any sending domain which, in the Agency's sole reasonable judgment, is harmful to the Client’s brand image shall be considered non-compliant.
Header Information. Each email shall utilize and show in the email header information the actual date that the email was sent, including the time, month, day, and year (“Send Date”). A Send Date that is obviously far in the past or the future shall be considered intentionally false and misleading header information. Each email must contain and show the approved ‘from’ line, the approved ‘subject’ line, and the actual recipient in the ‘to’ line. The ‘from’ line alias, the ‘from’ line email address, and the ‘subject’ line must all include the appropriate Client advertiser name, as provided in the Platform.
Email Tracking. Publisher and its Partners agree that Publisher may use one or more words, codes or symbols embedded in email Content, text or HTML code in order to identify email sent by Publisher and its Partners. Publisher and its Partners agree to use these tracking mechanisms in all emails and to not change, obfuscate, manipulate, hide or remove such tracking mechanisms. The parties will agree to the specific method used and outline such method in the Order.
Any emails not conforming in any respect to the terms of this Section 7(d) shall be deemed a material breach of this Agreement, and all Leads reasonably determined to have resulted from such non-conforming emails shall be Non-Qualified Leads.
Publisher Partners. As used herein, “Partners” shall mean any third party media providers, ad networks (including without limitation, display, search, social, video, mobile or any other type of ad network), inventory providers, publishers, aggregators or exchanges that use or display the Content to deliver Leads at the direction of, on behalf of, and/or under contract with Publisher. All references to Publisher in this Agreement shall include by extension each Partner, if any. Publisher acknowledges and agrees that the obligations of Publisher under this Agreement are the obligations of each such Partner.
Publisher shall be responsible for:
Managing and assuming responsibility for all aspects of the relationship with Partners, including but not limited to, making all payments to Partners in a timely manner;
Providing Agency at any time upon request detailed reports and data concerning specific Partners;
Ensuring each Partner strictly observes and conforms to the terms of this Agreement, as may be amended from time to time; and
Fully indemnifying and holding Agency their respective Client harmless from any claims arising from or relating to the performance of any Partner pursuant to Section 14 hereunder.
Agency may assign a campaign code to Publisher and Publisher shall, in turn, assign a sub-campaign code to each Partner to enable Partner-by-Partner Lead delivery tracking and measurement. In the event that Agency assigns campaign codes, failure by Publisher and/or any Partner to implement and enable such campaign and sub-campaign codes shall be deemed a material breach of this Agreement and all Leads reasonably determined to result from such failure shall be Non-Qualified Leads.
Agency and its Clients are third-party beneficiaries of the rights and remedies of Publisher under any agreement between Publisher and a Partner pursuant to which such Partner displays Content and/or delivers Leads. In the event Publisher becomes aware of any actual or potential breach of this Agreement by a Partner, Publisher shall notify Agency in writing and shall promptly cause the Partner to remedy the breach. In the event of a breach by a Partner, Agency or the applicable Client may instruct Publisher to exercise any right or remedy available to Publisher under the agreement between Publisher and such Partner, including but not limited to, the immediate termination of such Partner under this Agreement, and Publisher shall promptly comply with such instruction.
Lead Generation and Data Forms.
Users must affirmatively complete each data field themselves for a Lead to be deemed valid. Manipulation of data is prohibited and any lead that is found to be input by a party other than the specific user to which the lead data relates shall be deemed fraudulent and in material breach of this Agreement.
All Leads must be submitted on an approved lead form. An approved lead form is defined as a form created by Agency and/or a form that has been reviewed and approved in advance in writing by Agency.
Pre-population of a lead form is prohibited unless otherwise specifically authorized in writing by the Agency.
In lead generation campaigns, Publisher shall not remarket products or services to internet users which are delivered Leads hereunder. For the purposes of this section, “remarket” means, contemporaneously or immediately following the delivery of an Lead, to target an internet user with an additional advertisement which is intended to follow, piggy-back, or be a re-click or co-registration of the original Lead. Any leads collected by Publisher for other advertisers or purposes shall not also be submitted by Publisher to Agency or Client for use. Unless otherwise authorized in the applicable campaign, Publisher shall provide qualified lead information collected under this Agreement solely and exclusively to Agency and/or Client and no other party; provided, however, that nothing in this Agreement shall be construed to limit Publisher’s rights to provide leads to third parties under separate and valid agreements with such third parties.
Retargeting. Unless previously agreed to in writing signed by both Parties, Publisher shall not use data generated from users interacting with Client’s ads (“OBA Data”) to retarget users for ads of other advertisers, including without limitation advertisers which are competitors to Client. Notwithstanding the foregoing, in the event that Publisher does use OBA Data generated from Client’s ads to inform or assist in providing advertising campaigns to third parties as a part of its normal course of providing advertising services, Publisher represents and warrants that: (i) in a similar fashion, data generated from such third parties ads may also inform or assist in providing advertising campaigns to Client in the normal course of business; (ii) the OBA Data shall only constitute non-personally identifiable data as determined under applicable law; and (iii) Publisher shall only use the OBA Data with third parties in an aggregated, non-advertiser specific basis in combination with other data sources not subject to this Agreement and where such OBA Data does not constitute the majority of the overall data used in a given campaign. Publishers shall not place retargeting pixels or other similar technology on Agency’s or Client’s websites or applications without Agency’s express prior written consent. As between Publisher and Agency, any data generated from such retargeting or other similar technology from Agency’s or Client’s websites or applications shall be the property of Agency.
Search. Keyword and/or bid-based search marketing services are prohibited in the performance of the Services under this Agreement, unless otherwise approved by the Agency in writing. Without limiting the foregoing and unless otherwise specifically agreed to in writing by Agency, Publisher and its Partners, if any, may not: (i) use, purchase and/or bid for any keyword-based pay per click advertising, premium search sponsorships or featured search listings; or (ii) monetize Leads through any search channel regardless of the means utilized, including without limitation, paid search, unpaid search, organic search, toolbars, pop-ups, pop-unders, adware, apps, addons, programs, software, or anything similar to or of like nature to the foregoing. This section is not intended to prohibit display campaigns which target users by utilizing contextual results from users’ internet search results.
Publisher’s violation of any term or provision of this Section 7 shall be deemed a material breach of this Agreement.
Term and Termination.
This Agreement shall be in effect as of the Effective Date and shall remain in effect until terminated pursuant to the terms of this Agreement. Each Order shall have its own term. Unless otherwise provided in an Order, either party may cancel a Campaign at any time and for any or no reason, without penalty, on not less than forty-eight (48) hours prior written notice. Either Party may terminate this Agreement at any time, without penalty, on not less than thirty (30) days’ prior written notice. In addition, Agency may terminate this Agreement and all related Campaigns immediately without penalty in the event of (i) a material breach of this Agreement by Publisher or a Partner; and (ii) any other breach of this Agreement by Publisher or a Partner that remains uncured to Agency’s sole satisfaction for a period of five (5) calendar days from the date of written notice thereof.
Survival. All the terms of this Agreement that reasonably may be interpreted as surviving termination of this Agreement shall survive the termination of this Agreement. Without limiting the foregoing, the following sections shall specifically survive the termination of this Agreement: 4, 5, 6, 7, 8, 10, 13, 14, 15, 16, 17 18, 19 and 20.
Effect of Termination. In the event that Agency terminates this Agreement or an Order for cause due to a material breach by Publisher or a Partner, Agency shall not be required to pay any costs or service charges incurred through the effective date of termination for any then pending Campaigns.
Over Delivery. Leads delivered by Publisher for any Campaign that exceed the budgeted amount set forth in the applicable Order, Campaign instructions, or instructions which Agency may provide to Publisher from time to time shall be considered non-billable to Agency and/or Client. Any over delivery shall be at the sole expense of the Publisher.
Payment and Invoicing.
Provided that Publisher has provided Agency with its valid US taxpayer identification number and billing address, Agency shall make payment to Publisher forty-five (45) days from Agency’s receipt of invoice for all Qualified Leads delivered during the prior month.
All invoices shall be delivered to Agency’s billing address or billing email address provided by Agency as set forth in the Campaign instructions and must include all identifiable information, including without limitation, the Campaign name and/or code, and such other identifiable references as required for invoicing. All invoices pursuant to the Campaign must be received by Agency within sixty (60) calendar days of delivery and acceptance of all related Leads. Failure by Publisher to deliver such invoice or make such payment request shall be deemed a waiver of its right to payment for the corresponding items under the campaign. Invoices shall be submitted not more frequently than once a month unless otherwise agreed upon by both parties, commencing on completion of the first calendar month’s delivery or within thirty (30) days of completion of the campaign, whichever is earlier.
The Parties agree that in connection with a claim for damages caused by Publisher’s material breach of this Agreement, including but not limited to a breach of Sections 4, 5, 6, 7, 13 and 14.a, Agency may withhold from payment those amounts then due and owing to Publisher until such claims are settled. The parties shall work in good faith to settle any such claims, at which time the Agency shall promptly pay any amounts due to Publisher less damages, if any.
Data. Through the course of providing services hereunder, Publishers may be exposed to, collect, or require use of certain data related to websites, Campaigns and Leads (collectively, “Data”).
Customer Anonymous Information. “Customer Anonymous Information” means any non-personally identifiable information about persons or entities that is generated under this Agreement, whether generated on websites or technologies owned by Agency, Publisher or third parties, including without limitation, all aggregated or individual anonymous demographic information and browser cache data. Customer Anonymous Information may identify the Agency's industry or vertical but shall not identify the Agency. Customer Anonymous Information is not Customer Personal Information.
Customer Personal Information. “Customer Personal Information” means any personally identifiable information about persons or entities that Publisher obtains on behalf of Agency under this Agreement when generated on websites or technologies owned by Agency or Publisher on behalf of Agency, which concerns prospective and existing customers of Agency, including without limitation, names, addresses, telephone numbers, email addresses, social security information, credit card information, and call-detail information. Customer Personal Information does not include any Customer Anonymous Information.
Ownership and Use. Agency exclusively owns all rights, title, and interest in and to Customer Personal Information. Customer Personal Information is Confidential Information of the Agency under this Agreement. Publishers may collect, store, access, use, process, maintain and disclose Customer Personal Information only to fulfill its performance obligations under this Agreement and for no other purpose. Agency exclusively owns all right, title, and interest in and to Customer Anonymous Information but only to the extent that such Customer Anonymous Information is generated on websites or technology owned by Agency or Publisher on behalf of Agency. Notwithstanding Confidentiality section below, Publisher shall have a perpetual license to collect, store, access, use, process, maintain and disclose Customer Anonymous Information for the purposes of reporting, analyzing, and optimizing the performance of advertising campaigns with Agency or with third parties. To the extent that Customer Anonymous Information is generated on websites or technologies not owned by Agency, Agency shall not have ownership or use rights over such Customer Anonymous Information.
Privacy Policy. Publisher shall at all times during the term of this Agreement prominently post on its website(s), and adhere to, a privacy policy that conforms to all applicable laws, rules and regulations and permits Publisher’s performance hereunder (including, without limitation, the collection and disclosure of any and all information to be disclosed to Agency hereunder). Failure to continuously post and observe such a privacy policy shall be deemed a material breach of this Agreement.
Confidentiality. Each Party may be given access to the other Party’s Confidential Information during the course of this Agreement. As used herein, “Confidential Information” shall mean any information shared under this Agreement, whether or not such information is disclosed as confidential either orally or in writing, including without limitation: the terms of this Agreement; any Client, Partner, vendor or financial information; any marketing plans, services, or data; or any information that by its nature would reasonably be understood to be confidential. Notwithstanding the foregoing, Confidential Information shall not be considered any of the following: (i) information which becomes generally known to the public through no act or failure to act by receiving Party; (ii) information that was known by the receiving Party before receiving such information; (iii) information that is hereafter rightfully obtained by the receiving Party from a third party without breach of any obligation to the disclosing Party; (iv) information that is independently developed by the receiving Party without use of or reference to the Confidential Information by persons who had no access to the Confidential Information; (v) Campaign Materials or Campaign Metrics (defined below); or (vi) Data which is not owned by the disclosing Party. Using at least the same degree of care for its own confidential and proprietary information but in any event no less than a commercially reasonable standard of care, the receiving Party shall have a duty to safeguard, keep confidential and secure, and prevent unauthorized use and disclosure of all Confidential Information it receives from disclosing Party hereunder. Accepting trade secrets, which shall be held confidential for an indefinite period of time or until such trade secret becomes public knowledge through no act or failure to act of receiving Party, the receiving Party shall safeguard all Confidential Information as required hereunder for a period of five (5) years from the date and time of disclosure. Receiving Party may disclose the Confidential Information to those staff, advisors and vendors who need to know such Confidential Information as is reasonably necessary for receiving Party to carry out its duties hereunder; provided that all such Parties are under an obligation of confidentiality at least as restrictive as that set forth herein. The receiving Party may also disclose the Confidential Information as required under applicable law or judicial or administrative order, provided that the disclosing Party is notified with a reasonable time for disclosing Party, at its own expense, to make its own objections and protective orders. Except to the extent that Confidential Information is required for services continuing hereunder, at any time a disclosing Party may request in writing, and receiving Party shall promptly comply, that receiving Party return and destroy any or all of the disclosing Party’s Confidential Information held hereunder.
Indemnification.
By Publisher. Publisher (on behalf of itself and its Partners) shall defend, indemnify and hold harmless Agency and the applicable Client, and each of their respective agents, affiliates, subsidiaries, directors, officers, shareholders and employees from and against any and all actual or threatened demands, claims, debts, obligations, lawsuits, actions or proceeding, including all costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) relating to or arising out of Publisher’s and/or its Partner’s breach of this Agreement, use of unapproved Content, its negligence or intentional misconduct, its violation, misappropriation or infringement of a third party’s intellectual property rights or arising from an alleged failure to obtain prior express written consent from a consumer subject to a Lead and/or whose contact information is included in a Lead, where Publisher is obligated by this Agreement to collect such information.
By Agency. Agency (on behalf of itself and its Clients) shall defend, indemnify, and hold harmless Publisher and its respective agents, affiliates, subsidiaries, directors, officers, shareholders, and employees from and against any and all actual or threatened Losses relating to or arising out of Agency’s or Client’s breach of this Agreement or any claims that the Content delivered accurately and in strict accordance with this Agreement violates any third-party intellectual property rights or is otherwise defamatory, obscene or illegal.
Limitation of Liability. Notwithstanding the Parties’ indemnification obligations hereunder, neither Party shall be liable to the other for: (i) incidental, special punitive, indirect or consequential damages of any kind, including lost profits, lost data, lost revenues, loss of business opportunity, or harm to reputation or brand, whether or not either Party was aware or should have been aware of the possibility of such damages; or (ii) a total aggregate liability hereunder, if any, exceeding the amounts paid or payable hereunder in the one (1) year immediately-preceding the circumstance which gave rise to the claim.
Non-Circumvention. During the entire term of this Agreement, and for a period of one (1) year following the expiration or termination of this Agreement, Publisher shall not, nor shall it permit any third party acting on its behalf to, directly or indirectly, in any manner take any action to circumvent Agency by directly or indirectly engaging, contracting with and/or executing any performance-based online advertising and/or marketing relationship with any Clients for whom Publisher has provided services under this Agreement. As damages but not as a penalty for violation of this section, Agency shall be entitled to, without limitation and including all other rights available to it under equity or law, immediate injunction and payment of lost revenues Agency would have reasonably enjoyed in the absence of a non-violation. Notwithstanding the foregoing, Publisher will be permitted to continue providing services to those Clients with whom (a) Publisher had a direct contractual relationship that was current and valid as of the effective date of this Agreement; and (b) to whom Publisher was actively selling and trafficking advertising media during the month prior to the execution of this Agreement.
Non-Solicitation. For the term of this Agreement and for one (1) year thereafter, Publisher shall not, without the prior written consent of Agency, directly solicit for employment any person employed by Agency.
Audit Rights. During the term of this Agreement and for a period of two (2) years thereafter, Agency shall have the right to conduct, or have conducted on its behalf, periodic reviews of Publisher’s records (each, an “Audit”) relating to Publisher’s performance hereunder. An Audit shall include inspection and review of all records and practices of Publisher that relate to Publisher’s performance under this Agreement. Publisher shall maintain all usual and customary records related to such performance at its principal place of business for a period of two (2) years following the expiration or termination of this Agreement. Agency shall provide Publishers with reasonable advance written notice of any Audit. Audits shall be conducted during normal business hours and shall not unreasonably interfere with the normal business operations of Publisher. Publisher shall cooperate fully with Agency in connection with any Audit and shall give Agency access to its premises for conducting such Audit. Notwithstanding the above, Agency may conduct an Audit upon twenty-four (24) hours prior written or telephonic notice to Publisher if Agency reasonably believes that any information or documentation has been or is about to be disclosed in an unauthorized manner. Agency shall pay the cost of the Audit unless it is revealed Publisher is in material breach of this Agreement or any billing discrepancy of five percent (5%) or higher as between the amounts billed to Agency and amounts detailed in the pricing structure under this Agreement, in which event Publisher shall pay the cost of the Audit. Publishers shall immediately upon demand by Agency cure any breach or billing discrepancy determined by the Audit. As an alternative, in respect to billing discrepancies only, Agency may, in its sole discretion, offset the amount of any such discrepancy against any amounts then or thereafter due Publisher by Agency.
Insurance. Publisher shall, for the duration of this Agreement and for five (5) years after the date that the last TCPA consent record is received by Publisher or its Partner(s) that pertains to a Lead sold to Agency or its designated Client, maintain insurance as is usual and prudent in Publisher’s industry and, in any event, to include at the minimum, Commercial General Liability, Errors and Omissions, Cyber Liability Insurance and Umbrella policies with coverage for actions of any type brought in connection with telemarketing calls, in an aggregate amount of $2,000,000, and shall identify Agency and its Client’s Campaign as an additional insured party. Publisher agrees to provide Agency with evidence of the foregoing coverages upon request from Agency.
Miscellaneous.
Governing Law and Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of or matter arising out of this Agreement shall be brought exclusively in the state or federal courts of Clark County, Nevada, and each of the Parties hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any suit, action or proceeding. This Agreement shall be construed in accordance with and governed by the laws of the State of Nevada.
Attorneys’ Fees. In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing Party in such dispute shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Successors and Assigns. Neither Party may assign this Agreement, in whole nor in part, without the other Party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may automatically assign its rights and obligations hereunder to: (a) any corporation or entity resulting from any merger, consolidation, or other reorganization of such Party; (b) any individual or entity to which such Party may transfer substantially all of the assets and business of such Party; or (c) any entity that controls, is controlled by, or is under common control with such Party, or of which such Party beneficially owns at least fifty percent (50%) of the equity interest therein. All the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and permitted assigns.
Force Majeure. Neither Party is subject to, and neither Party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to acts of terrorism, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the parties reasonable control (“Force Majeure Event”). Notwithstanding the aforesaid, if a Force Majeure Event takes place and a party is materially hindered in the performance of its obligations under this Agreement or its normal business operations are delayed or become impossible, then, without limiting the hindered party's rights, the hindered party shall have the option, by giving the other party written notice, to suspend its obligations hereunder for the duration of any such contingency provided that such hindered party shall promptly upon discovery of the Force Majeure Event, use its commercially reasonable efforts to recommence performance of the affected obligations or provide an acceptable alternative to such services, provided that no such suspension shall exceed three (3) months. If any such suspension exceeds three (3) months, the non-hindered party shall have the right to terminate this Agreement at any time on written notice to the hindered party.
Independent Contractors. Publisher will perform hereunder as an independent contractor of Agency solely for the purpose of carrying out the provisions of this Agreement, and this Agreement will not be construed to create any partnership, joint venture, agency or employment relationship between Publisher and Agency.
Counterparts. This Agreement and any Order may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document, and delivered to the other by means of electronic transmission.
Waiver and Remedies. No term or provision hereof shall be deemed waived and no breach excused unless such waiver shall be in writing and signed by the Party claimed to have waived or consented. No course of dealing or failure of either Party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of such term, right or condition. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
Notice. Unless otherwise provided herein, notice from one Party to the other shall be made in writing to the address provided below, or to another address as directed by a Party from time to time as provided in this section, and notice shall be deemed given as of the expiration of the third business day from the day such notice is deposited for delivery, as evidenced by written proof of such deposit.
Entire Agreement and Headings. This Agreement and the attachments hereto shall constitute the entire Agreement between the Parties with respect to the subject matter of this Agreement and supersede all existing oral and contemporaneous or written contracts or agreements between the Parties. Headings are provided for convenience purposes and shall not be used to construe or interpret the terms of this Agreement.
The Parties have executed this Agreement by their authorized representatives as of the Effective Date.
