Terms of Service
Audience Drive Partner Network Terms and Conditions
Section 1. Definitions
1.1 "Action" means some act or conduct that a User must complete as specified by Advertiser or in an IO, including, but not limited to, as applicable, filling out an on-line form, or completing all of the steps to make a purchase or subscribe for a service.
1.2 "Adjusted Publisher Revenue" means Qualifying Revenue actually collected by Advertiser as a direct result of Qualifying Traffic, as calculated by Advertiser in its sole and absolute discretion, where the Qualifying Traffic is generated by the Internet Properties of a New Publisher referred by Publisher pursuant to the Referral Program.
1.3 "Advertise" means to engage in activity designed to induce a User to view an advertisement or complete an Action, including but limited to (a.) displaying (or in the case of sound, emitting) traditional on-line advertisements, such as banner ads; (b.) inserting Advertising Material into contextually relevant websites or other Internet Properties; (c.) sending e-mail containing Advertising Material; (d.) purchasing keywords on search engines; (e.) hosting webpages (including landing pages); (f.) search engine optimization activities, such as embedding metadata in webpages or designing such webpages to rank highly on search engines; (g.) including Advertising Material in a series of webpages each of which offers the User the opportunity to complete an Action or series of Actions (sometimes referred to as co-registration or co-reg).
1.4 "Advertiser's Network" means the Audience Drive Partner Network, a proprietary online advertising network owned and operated by Advertiser enabling owners, operators and publishers of websites, social media pages and applications, social networks and other Internet Properties to display online advertisements from Advertiser and Advertiser's proprietary pool of advertising clients and networks on or in connection with such Internet Properties.
1.5 "Advertising Material" or "Advertising Materials" means any images, text, sound, video or other content used as, or as part of, an advertisement.
1.6 "Advertising Tags" means the HTML or other codes (a.) that cause the display of advertisements, (b.) that permit Advertiser or Publisher to track information about Users viewing or clicking advertisements, or (c.) that permit Advertiser or Publisher to track Users who view landing pages or other websites or who entirely or partially complete an Action.
1.7 "Affiliate", as used in connection with a New Publisher referred by Publisher pursuant to the Referral Program, means a person or entity that is related to or affiliated with Publisher, as determined by Advertiser in its sole and absolute discretion.
1.8 "Agreement" shall have the meaning set forth above.
1.9 "API" stands for Application Programming Interface and is an interface implemented by a software program to allow it to interact with other programs.
1.10 "Dashboard" means the electronic interface Advertiser permits Publisher to access for the purpose of tracking impressions, clicks, Actions, or other statistics related to an advertising campaign.
1.11 "Insertion Order" or "IO" means an agreement entered into by Advertiser and Publisher, each of which is incorporated herein by reference. The IO may be an (a.) electronic or paper form identifying itself as an IO, (b.) a web-based form identifying the payment model and campaign, or (c.) any written posting, webpage, or communication (including e-mail) exchanging Advertising Tags.
1.12 "Internet Property" means any Internet-aware forum, software application or platform by which Users view, access or interact with content, possibly including advertisements. Examples of Internet Properties include, but are not limited to, web pages; on-line applications; toolbars; social media applications; web-related technologies that contain or transmit content to Users (e.g. Adobe Flash); mobile applications (sometimes called "apps"); e-mail lists, newsletters, or platforms that transmit electronic messages or mail; and Internet-aware computer applications.
1.13 "Laws" means, individually and collectively, any federal, state, local, foreign, regional, provincial or other laws, regulations, statutes, ordinances, directives or requirements promulgated by a governmental or quasi-governmental entity, including, without limitation, the Telephone Consumer Protection Act ("TCPA"), the EU General Data Protection Regulation 2016/679 ("GDPR"), all regulations, guidelines and staff reports issued by the Federal Trade Commission ("FTC"), the Consumer Financial Protection Bureau ("CFPB"), a state attorney general or any other regulatory agency, including any such agencies' interpretations of what constitutes unfair, deceptive, or abusive acts or practices.
1.14 "New Publisher" means a publisher referred by Publisher pursuant to the Referral Program and accepted into Advertiser's Network where Advertiser had no prior knowledge of or contact with the publisher or its Affiliates.
1.15 "Non-Personal Data" means any information that alone, or in combination with data easily found on the Internet, is not capable of individually identifying a User, including but not limited to IP Address (if not associated or likely to be associated with other information that renders it capable of identifying an individual User), client browser information, non-identifying cookie, and referral link information.
1.16 "Party" means either Advertiser or Publisher, and "Parties" means Advertiser and Publisher collectively.
1.17 "Personal Data" means any information or combination of information capable of identifying or reasonably identifying an individual User, including but not limited to a User's profile, picture, name, precise geographic location, telephone number, physical and e-mail address.
1.18 "Prohibited Materials" means, as determined in Advertiser's sole and absolute discretion, (a.) pornography or sexually explicit content, (b.) materials that promote or glorify violence, firearms, or other weapons, (c.) materials communicating hate or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, gender identity, or any other legally protected category (d.) materials promoting illegal activities; (e.) materials promoting gambling or sales or use of alcohol, tobacco, or firearms (unless explicitly permitted in the IO), (f.) profane or obscene language, (g.) materials that infringe or violate the rights of others (including copyright, trademark, trade secret, privacy and/or publicity rights), (h.) defamatory, libelous, obscene, offensive or harmful material, (i.) materials that violate any applicable Laws, including, without limitation, the CAN-SPAM Act of 2003 and its implementing and interpretive regulations and guidances (collectively, "CAN-SPAM"), the Restore Online Shoppers Confidence Act, state Laws relating to spam or unsolicited electronic communications, Laws relating to unfair, abusive or deceptive acts or practices or consumer fraud, Laws relating to Spyware, Adware (as defined in Section 3.7 below) or malware, financial services Laws, Laws relating to online privacy and/or data security, and Laws relating to online sweepstakes and contests, (j.) materials targeted at or designed to appeal to children under the age of 13, and (k.) materials that violate the prohibitions contained in the IOs or posted at the Audience Drive Advertiser's Network website.
1.19 "Qualifying Revenue" means revenue from the first sale or transaction after the User clicks on an advertisement or completes a valid Action, which is actually collected by Advertiser, less certain expenses and offsets decided by Advertiser in its sole and absolute discretion. Expenses and offsets deducted from Qualifying Revenue include, not are not limited to: credits, credit card or other payment processing fees, commissions or discounts to agencies, mailing costs, allocation of operational costs (including virtualized computing, hosting and bandwidth) as determined by Advertiser, chargebacks, bad debt expenses, uncollected amounts, deductions for fraud, refunds for undelivered, misdelivered or invalid impressions or non-Qualifying Traffic, taxes (excluding taxes assessed on Advertiser's net income) and other governmental charges, agency and referral fees, and adjustments made by Advertiser or its vendors or customers to amounts paid or payable to the relevant publisher based on the quality of Users and/or validity of Actions (all as determined by Advertiser in Advertiser's sole and absolute discretion).
1.20 "Qualifying Traffic" means unique, human Users who intentionally click or view on Advertising Material from an Internet Property and are tracked using the Advertising Tags assigned to the relevant publisher. Qualifying Traffic specifically excludes all fraudulently generated traffic, as determined by Advertiser in its sole and absolute discretion. By way of illustration and not limitation, Qualifying Traffic does not include Users originating from such publisher's IP Address, affiliated with such publisher, its Sub-Publishers or their respective contractors or related persons in any way, or any User related to Advertiser, or Advertiser's service providers or vendors. Qualifying Traffic also does not include, as determined in Advertiser's sole and absolute discretion, Users in connection with which the relevant publisher engages in any of the following:
(a.) Directly or indirectly encouraging any non-human interactions with the Advertising Tags, including but not limited to, use of robots, spiders, automatic redirects, or other artificial, automated or electronic means to click on or display the Advertising Material or complete Actions;
(b.) Directly or indirectly offering any person or entity any consideration, incentive or item of value (including, without limitation, payment of money (including any rebate), or granting of any discount or other benefit) for using Advertising Tags or taking any action in connection with an advertisement on the publisher's Internet Property (e.g., by implementing any "rewards" program);
(c.) Reading, intercepting, recording, redirecting, interpreting, or filling in the contents of any electronic form or other materials (all of which is strictly prohibited under this Agreement);
(d.) In any way modifying, redirecting, suppressing, or substituting the operation of any code, button, link, or other interactive feature of the Advertising Tags, or Advertiser's or its service provider's Internet Property, landing page, or computer systems, or Advertiser's Network;
(e.) Taking any action that could reasonably cause any consumer confusion or deception as to Advertiser's relationship with the publisher or the publisher's relationship with Advertiser's actual or prospective customers, vendors or other third parties;
(f.) Violating any obligation, representation, or warranty in this Agreement or any relevant IO;
(g.) Generating or completing Actions of substandard quality;
(h.) Running Advertising Material after the expiration of any specific flight dates set by Advertiser, or after any relevant caps on Actions, clicks or impressions have been reached;
(i.) Running Advertising Material which has been superseded by other Advertising Material furnished by Advertiser;
(j). Requiring Users to click on Advertising Material before entering any area of an Internet Property; or
(k.) Otherwise committing any act or omission that could affect the quality of Actions generated from the publisher's webpage or other Internet Property.
1.21 "Referral Program" means Advertiser's publisher referral program whereby publishers can refer other publishers for participation in Advertiser's Network. The terms of the Referral Program are set forth in Section 5.8 of these Terms.
1.22 "Spyware" shall mean computer programs or tools that: (a.) alter a User's browser or other settings or use an ActiveX control or similar device to download advertisement supporting or other software without providing clear and conspicuous notice to and obtaining affirmative consent from the User; (b.) prevent a User's reasonable efforts to block the installation of or disable or remove unwanted software; (c.) remove or disable any security, anti-Spyware or anti-virus technology on a User's computer; (d.) send e-mail through a User's computer without prior authorization; (e.) open multiple, sequential, stand-alone advertisements in the User's Internet browser which cannot be closed without closing the Internet browser or shutting down the computer; (f.) engage in the surreptitious collection or tracking of User information or activity; or (g.) cause other similar activities that are prohibited by applicable law.
1.23 "Sub-Publisher" means a person or entity having a business relationship with a publisher that fulfills or helps to fulfill such publisher's obligations under this Agreement, including but not limited to, Advertising or otherwise inducing users to complete Actions using Advertiser's Network, or that the publisher otherwise allows to Advertise pursuant to this Agreement.
1.24 "Subscription Process" means the series of web pages or interactions a User encounters in subscribing to a mobile service, beginning with clicking on an advertisement and continuing through each step of the sign-up process.
1.25 "User" is an individual browsing the World Wide Web, or any Internet Property, including any mobile Internet Property, that might see and interact with an advertisement.
Section 2. Registration and Acceptance
2.1 Registration. To apply to become a part of Advertiser's Network, Publisher shall submit a complete and accurate Publisher Registration Form. Advertiser will evaluate the application and promptly notify Publisher if accepted. Advertiser reserves the right to reject the application for any reason at any time, in its sole discretion. If any of the information supplied as part of the application changes, at any time, Publisher must immediately inform Advertiser of the changes.
2.2 Age and Authority. By submitting an application, clicking the "I Agree" link, or accessing, using or participating in Advertiser's Network, the individual so acting represents and warrants he or she is at least eighteen (18) years of age and has the capacity to be bound by the Agreement. If the individual clicking the "I Agree" link is submitting an application on behalf of an entity, that individual represents and warrants that he or she has the full authority to bind the entity to all of the terms and conditions of this Agreement and any future Insertion Order. In such an event, any reference to "Publisher" or "you" shall refer jointly to you individually as well as the applicable underlying entity.
2.3 Prohibited Materials and Accuracy; Prohibited Keywords. In addition to other criteria that Advertiser may use to evaluate Publisher's application, Publisher represents and warrants that its Internet Properties do not and will not contain or promote Prohibited Materials. Publisher further represents and warrants that any application submitted on behalf of Publisher is truthful, complete, accurate and non-misleading in all respects. Publisher and its Sub-Publishers will not directly or indirectly bid on or utilize any Protected Keyword with any search engine provider (including Google AdWords), or use or display any Protected Keyword in or connection with any URL, Advertising Materials, metatag or Internet Property. A "Protected Keyword" shall mean any Google AdWord or other keyword (a.) containing a trade or service mark, corporate or product name owned by a third party (or a confusingly similar variant thereof), Publisher's use of or bidding on which has not been expressly authorized by the relevant third-party owner; or (b.) appearing a list of prohibited keywords as provided by Advertiser to Publisher from time to time.
2.4 Acceptance. Upon Advertiser's acceptance of the application, Publisher must register on the Dashboard and create a unique, password-protected account. After registering and in consultation with Advertiser, Publisher shall download Advertising Tags relevant to campaigns specified in the IO and commence its participation in Advertiser's Network in accordance with this Agreement.
2.5 Reapplication. If Advertiser rejects the application, Publisher may re-apply at any time. By completing the enrollment process, Publisher represents that it is the owner or the authorized agent of the owner of the Internet Property.
Section 3. Advertising Campaign
3.1 Generally. Advertiser and Publisher may execute IOs or otherwise make agreements for Publisher to direct User traffic to Advertiser on Advertiser's behalf. If the IO calls for delivering advertisements, Publisher shall deliver such advertisements in accordance with the requirements in the IO and this Agreement. Such advertisements shall link to Internet Properties for the purpose of encouraging Users to complete an Action. Advertiser shall provide Advertising Tags that display advertisements which will direct Users to a landing page. The Advertising Tags must employ a means, determined by or otherwise acceptable to Advertiser, of uniquely identifying Publisher and permit Advertiser to associate impressions, clicks, or Users' valid Actions with Publisher.
3.2 Initial Setup. If the IO calls for Publisher to deliver advertisements, Publisher shall provide Advertiser with its technical specifications to deliver advertisements. Advertiser shall determine whether the Advertising Materials are compliant with such specifications and shall determine whether and how best to conform the Advertising Materials to such specifications. Advertiser, at its own expense, shall provide Advertising Materials to Publisher. Publisher shall not, and represents and warrants that it will not, tamper with, disable or change any Advertising Tags.
3.3 Nature of Advertising Materials. Advertiser may provide Advertising Materials to Publisher in the form of ready-to-use advertisements or in the form of various logos, pictures, text, or other creative material. In either case, Publisher may not alter the submitted Advertising Materials or create new advertisements based on them, unless it first obtains Advertiser's prior written consent, which may be granted or withheld in Advertiser's sole discretion. Publisher shall submit any new or altered Advertising Materials to Advertiser and shall not publicly display them without Advertiser's prior written approval. Publisher may not alter any Advertising Materials in any manner except as expressly permitted in this paragraph.
3.4 Ownership of Advertising Materials. Advertiser shall be the exclusive owner of all rights (including, without limitation, all copyrights and trademarks throughout the world) in the Advertising Materials, including, without limitation, in any modifications or alterations in the Advertising Materials created pursuant to the Agreement. For the duration of this Agreement and solely for the purpose of fulfilling Publisher's obligations under this Agreement, Advertiser hereby grants Publisher a world-wide, non-exclusive, non-transferable, revocable, limited, royalty-free license to use, copy, distribute, and make derivative works of the Advertising Materials. If Publisher creates any derivative works from Advertiser's Advertising Materials, it irrevocably assigns and transfers all ownership rights (including all copyrights) in those derivative works to Advertiser and agrees to execute and deliver all documents and take any other actions requested by Advertiser for the purpose of confirming, recording, perfecting or enforcing Advertiser's ownership rights in the Advertising Materials. In addition, Publisher waives and relinquishes all "moral rights" or similar rights throughout the world in any derivative works created pursuant to this Agreement. Advertiser reserves all rights not expressly granted in writing.
3.5 Placement. Publisher shall only Advertise on Internet Properties that were explicitly approved by Advertiser in the initial registration for Advertiser's Network or afterwards by Advertiser's express written consent. Publisher may propose new Internet Properties to Advertise from time to time, but each must receive Advertiser's express written consent before Publisher may Advertise on them. Publisher shall immediately comply with Advertiser's requests to modify, alter or otherwise change the positioning, placement or other aspects of editorial decision-making related to the Advertising Materials.
3.6 Advertising by Sub-Publishers. Publisher shall not allow Sub-Publishers to use Advertiser's Advertising Tags, or otherwise Advertise or fulfill Publisher's obligations under this Agreement, without Advertiser's express prior written consent, which may be granted or withheld in Advertiser's sole discretion. Advertiser must approve each individual Sub-Publisher in writing and in advance. Even with such consent, Publisher assumes full liability for any Sub-Publisher's actions or omissions and shall ensure their full compliance with all terms and conditions of the Agreement. Any action or omission of a Sub-Publisher shall be deemed as if Publisher had so acted or not acted. If Advertiser or a third party complains about any activities of a Sub-Publisher, Publisher shall immediately, as directed by Advertiser, (a.) provide Advertiser with all requested information concerning such Sub-Publisher, (b.) cause such Sub-Publisher to strictly comply with all terms and conditions of the Agreement, and/or (c.) terminate such Sub-Publisher from further participation in Advertiser's Network.
3.8 Removal of Advertising. Advertiser has the right to require Publisher to remove Advertiser's Advertising Tags or Materials from any Internet Property the Publisher controls (or is controlled by a Sub-Publisher) at any time and for any reason. Upon receipt of such notice, Publisher shall remove such Advertising Materials or Tags within six (6) hours and shall use commercially reasonable efforts to effect such removal as soon as possible.
3.9 Additional Terms for Auto Insurance Campaigns. The following additional terms shall apply if Publisher is referring leads or displaying or disseminating Advertising Material for auto insurance. "Insurance Provider" means an insurance carrier, provider, agent, insurance professional or other third party who purchases lead information from Advertiser with the intent of providing requested insurance or discount plan information and/or quotations to Consumer Users, or solely to the extent permitted herein, reselling such lead information to other insurance carriers, providers, agents or other insurance or discount plan professionals. Publisher represents, warrants and covenants to Advertiser that the Consumer Users associated with any lead information collected, sold or distributed under this Agreement, at the time of each such Consumer's submission of a quotation request form or other form relating to auto insurance, (a.) consented to the distribution by Publisher of such Consumer's Personal Data and Non-Personal Data to Insurance Providers for the purpose of contacting the Consumer and providing a requested quotation or obtaining additional information for the purpose of providing a requested quotation, and (b.) consented to each such Insurance Provider confirming the Consumer's Personal Data or obtaining additional information about the Consumer through the use of a Consumer report, expressly including a credit report and, as applicable, a driving record.
3.10 Compliance. Publisher's Advertising, Internet Properties and Advertising Material shall comply with all applicable Laws.
Section 4. Advertiser's Network & Dashboard
4.1 Dashboard. Advertiser shall maintain a system (the Dashboard) that tracks, as each IO may require, impressions of advertisements, clicks on advertisements, valid Actions, and Qualifying Revenue derived from Publisher's Qualifying Traffic. The Dashboard may permit Publisher, among other things, to (a.) update its account information, such as e-mail address and password; (b.) download a unique publisher identification code (such as Advertising Tags) to install on Publisher's Internet Properties, which will cause Advertising Material to be displayed there; and/or (c.) track the number of conversions or amount of earnings that Publisher has generated.
4.2 Username and Password. Advertiser shall provide Publisher with login and password to access the Dashboard. Publisher shall be responsible for safeguarding and maintaining the confidentiality of its account and associated password. Publisher shall be fully and solely responsible for any and all activity under Publisher's account, whether authorized by Publisher or not. Publisher shall immediately notify Advertiser of any unauthorized use of its account.
4.3 Exclusive Means of Tracking. The Dashboard is the exclusive tracking system for all purposes relating to the Agreement, including for determining amounts owed to Publisher. Upon Publisher's request, Advertiser may also place Publisher's tracking pixel as a convenience to Publisher. However, in the event of any discrepancy between activity reported by Publisher's tracking pixel and activity reported by the Dashboard, the Dashboard's reporting shall be final, binding and determinative. It is Publisher's responsibility to reconcile its tracking against the reporting in the Dashboard.
4.4 Accuracy of Publisher Information. Publisher shall keep its account information current, complete and accurate, and Publisher acknowledges and agrees that Advertiser will have no responsibility or liability, directly or indirectly, for any failure to deliver notices or payments as a result of inaccurate or out-of-date Publisher account information.
4.5 License. Advertiser grants Publisher a revocable, non-exclusive, non-transferable, limited license to use the Dashboard, Advertiser's Network, and their related services pursuant to the terms of this Agreement and for the sole purpose of fulfilling Publisher's obligations under and for the duration of this Agreement.
4.6 Use of Dashboard. The Dashboard, Advertiser's Network, and their operations, interface, and features are Confidential Information. Publisher shall not reverse-engineer, decompile, deconstruct, or copy any aspect of the Dashboard, Advertiser's Network, or their related services. Publisher shall also not use the Dashboard, Advertiser's Network, or their related services in any manner not provided for in this Agreement or that adversely affects the functioning of such systems, tools, or services.
Section 5. Payment
5.1 Calculation of Payment. Advertiser shall pay Publisher based on the payment model specified in the IO and calculated as follows: (a.) For CPM: Number of impressions shown to Qualifying Traffic, divided by 1,000, multiplied by the price specified in the IO;(b.) For CPC: Number of clicks on advertisements shown to Qualifying Traffic multiplied by the price specified in the IO;(c.) For CPA: Number of valid Actions derived from Qualifying Traffic multiplied by the price specified in the IO; and(d.) For Revenue Share (sometimes called RevShare): Qualifying Revenue derived from Qualifying Traffic, multiplied by a percent decided by Advertiser in its sole and absolute discretion, which may change from time to time without notice and which is based on the quantity, quality, and validity of impressions, clicks, and Actions and User demographic information (such as, but not limited to, the country location of a User's IP address). Publisher acknowledges that such adjustments are reasonable and customary in the online advertising industry. Notwithstanding anything in the Agreement to the contrary, Advertiser is not obligated to pay Publisher until Advertiser has received payment from its relevant lead buyer, advertiser or customer, and in such event Advertiser's payment obligation shall not exceed the amount received from such person.
5.2 Valid Actions. An Action is valid if Advertiser, in its sole and absolute discretion, triggers the tracking mechanism counting the Action as valid, and Advertiser (or Advertiser's advertiser, customer or lead buyer) does not later have reason to invalidate it. Without limiting the foregoing, to be valid an Action must, at a minimum, be fully and accurately completed by the User and be accepted by Advertiser's advertiser, lead buyer or customer. Grounds for later invalidation of an Action include, but are not limited to, a good-faith basis for believing that Publisher has committed fraud or intentional misconduct, that false or incomplete information has been submitted by the User, that the information submitted duplicates information already in Advertiser's or its customer's or lead buyer's database, that the User for any reason does not constitute Qualifying Traffic, or that Publisher is in violation of any term of this Agreement. Publisher is entitled to no compensation for any invalid Action.
5.3 Fraud. Publisher must Advertise only with the intention of delivering Qualifying Traffic or generating valid Actions. Publisher shall not, or knowingly permit or incentivize any person to, inflate the number of Actions through (a.) any deceptive or misleading practice, method, or technology including, but not limited to, the use of any Spyware, Adware, device, program, robot, redirects, spiders, computer script or other automated, artificial or fraudulent method designed to appear like a live individual or (b.) any other activity that is likely to cause Users not to be Qualifying Traffic.
5.4 Withholdings, Cancellations, and Chargebacks. Notwithstanding anything to the contrary in this Agreement, Advertiser may withhold, cancel, or chargeback amounts owed or payments already made to Publisher if Advertiser (or its advertiser, customer or lead buyer) determines, in its absolute and sole discretion, that the amount due or payment was generated by non-Qualifying Traffic or invalid Actions. Advertiser may chargeback at any time and such chargebacks shall be reconciled or set off against future billables or, if no IOs are on-going, shall be paid by Publisher within ten (10) days after notice by Advertiser. In addition to its other rights, Advertiser (or any parent, subsidiary, or affiliated company) in its absolute and sole discretion may withhold, cancel, set off or chargeback (a.) any amounts contemplated under this paragraph, or (b.) any other losses, damages, expenses or costs that Advertiser (or its parent, subsidiary or affiliated company, as applicable) suffers as a result of non-Qualifying Traffic or invalid Actions generated by Publisher, against amounts that would otherwise be payable to Publisher (or any parent, subsidiary or affiliated company) under this Agreement or any other agreement between the relevant parties.
5.5 Invoices and Payment Terms. Except as may be otherwise provided in an Insertion Order, as soon as practicable following the end of each calendar month, Advertiser will provide Publisher, via the Dashboard, electronic transmission or otherwise, with a statement of account for the fees owed to Publisher for the immediately preceding calendar month. Advertiser will make payment of the undisputed portion of fees for the immediately preceding month within the timeframe specified in the applicable Insertion Order or (if no such timeframe is specified) within thirty (30) days after the end of the preceding month. All payments will be in US dollars. If Publisher disputes any aspect of an invoice, including the validity of Actions or whether a User was properly categorized as Qualifying Traffic, Publisher shall do so within seven (7) days after the end of the relevant calendar month and shall provide specific detailed information to support its claims (as well as access to any other records or information requested by Advertiser to assist in determining the validity of such claims). If Publisher fails to notify Advertiser of a dispute or provide the requisite supporting information within the seven (7) day period, or to cooperate with Advertiser's requests for further information, then Publisher irrevocably waives all claims and demands relating to the subject matter of the dispute. Advertiser shall evaluate the furnished information and work with Publisher in good faith to resolve any timely reported dispute; provided, however, that Advertiser's determination based on such evaluation shall be final, binding and conclusive. Notwithstanding the foregoing, Advertiser shall not be required to consider disputes relating to the tracking of clicks, impressions or Actions, as the tracking and reporting in the Dashboard shall be conclusive.
5.6 Refund of Prepayment. If the IO calls for Advertiser to pre-pay Publisher and Advertiser cancels the IO or agreement for any reason, Publisher shall refund any unused amount of the pre-payment within ten (10) business days after receipt of the notice of termination.
5.7 Taxes. Except as expressly stated in an IO and for taxes on Advertiser's net income, all value added, sales, and other taxes arising out of or relating to this Agreement shall be the responsibility of Publisher.
5.8 Publisher Referral Program. If Publisher refers a person or entity (other than Publisher or an Affiliate of Publisher) that becomes a New Publisher for Advertiser, then, so long as Publisher has not breached the Agreement, Advertiser shall pay Publisher a percentage of Adjusted Publisher Revenue attributable to the New Publisher's Internet Properties for a period of one (1) year after the date of the initial referral of the New Publisher to Advertiser, up to a maximum of \$20,000 for each New Publisher. The Referral Program revenue share percentage is currently five (5%). Payments shall be made within thirty (30) days after the end of each calendar month with respect to Adjusted Publisher Revenue received by Advertiser during the preceding month. Where a New Publisher has been referred to Advertiser by more than one existing publisher, Advertiser reserves the right to determine, in its sole discretion, which (if any) current publisher will earn the Referral Program revenue share percentage for that New Publisher. Prospective New Publishers may be accepted or denied by Advertiser in its sole and absolute discretion. Conditions for acceptance include, without limitation, the New Publisher's manual or electronic execution of a publisher agreement (which may be these Terms) in a form satisfactory to Advertiser. Advertiser also reserves the right to discontinue its relationship with any New Publisher at any time in its sole and absolute discretion, and Publisher's revenue share from such New Publisher will end upon termination of that New Publisher's relationship with Advertiser. Advertiser may terminate or change the terms of the Referral Program at any time with or without notice. All payment obligations under this Section 5.8 will end upon termination of the Referral Program or the Agreement.
Section 6. Confidentiality, Proprietary Rights, Non-Circumvention
6.1 Protection of Confidential Information. Except as expressly permitted in this Agreement, Publisher shall not make any disclosure of Advertiser's Confidential Information to anyone other than Publisher's employees, consultants and other personnel who have a need to know in connection with this Agreement and have executed a written confidentiality agreement containing protections for Advertiser's Confidential Information that are at least as restrictive as those in this Agreement. Furthermore, Publisher shall not use Advertiser's Confidential Information for any purpose except as necessary to fulfill its obligations under this Agreement. Publisher shall notify its applicable employees, consultants, and other personnel of their confidentiality obligations with respect to Advertiser's Confidential Information and shall require such persons to comply with these obligations. The confidentiality obligations of Publisher and its employees, consultants and other personnel shall survive the expiration or termination of this Agreement. In maintaining the confidentiality of Advertiser's Confidential Information, Publisher shall exercise the same degree of care that it exercises with its own Confidential Information, and in no event less than a reasonable degree of care.
6.2 "Confidential Information" shall mean all information of, or concerning, Advertiser, its affiliates, and/or its and their respective directors, partners, officers, employees and members, which is not publicly available and is disclosed to or obtained by Publisher, including without limitation, software, technical processes and formulas, source codes, product designs, sales, pricing, cost and other unpublished financial information, product and business plans, advertising strategies and revenues, marketing methods, performance of Advertising Material, usage rates, advertising relationships, projections, and marketing and customer data, information about Advertiser's advertiser, network, customer, lead buyer and publisher relationships, as well as the terms of the Agreement and information about the relationship between the Parties. "Confidential Information" shall not include any information to the extent that Publisher can demonstrate such information (a) is, as of the time it is disclosed to or obtained by Publisher, or thereafter becomes, part of the public domain other than as a result of the acts or omissions of Publisher, its agents or personnel, (b) was rightfully known to Publisher as of the time it is disclosed to or obtained in connection with this Agreement, or (c) is subsequently learned from a third party not under a confidentiality obligation to Advertiser. The terms and existence of this Agreement and each IO shall be deemed to be the Confidential Information of Advertiser.
6.3 Protective Order. If Publisher is required by any Law to disclose Advertiser's Confidential Information, it shall immediately provide Advertiser with written notification prior to making any such disclosure in order to enable Advertiser to seek a protective order or other appropriate remedy from the proper authority, and will cooperate with Advertiser with respect thereto. If Advertiser is not successful in precluding the relevant authority from requiring the disclosure of Confidential Information, Publisher shall only furnish that portion of the Confidential Information that is legally required, and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded to the Confidential Information.
6.4 Property of Advertiser. Advertiser's Confidential Information disclosed to Publisher (in whatever form, including the Dashboard and information within it, this Agreement, and any information in computer software or held in electronic storage media) shall be and remain Advertiser's sole and exclusive property, unless expressly provided for otherwise in this Agreement. Promptly upon Advertiser's written request or the termination or expiration of this Agreement, Publisher shall return, in its original format, or destroy all of Advertiser's Confidential Information, which shall not thereafter be retained in any form. If requested by Advertiser, Publisher shall provide written confirmation of the destruction or elimination of Advertiser's Confidential Information.
6.5 Publicity; Press Releases. Advertiser may utilize Publisher's name, logo and website(s) on partner lists and informational material solely to identify such Publisher as a user of Advertiser products or services. Notwithstanding the foregoing, the Parties hereby acknowledge and agree that (a.) there shall be no press release or other public announcement regarding the details of this Agreement; and (b.) neither Party shall issue any press release or other public or promotional communication referring to this Agreement or using the name or trademarks of the other Party without the express prior written consent of the other Party. The Parties each represent and warrant to each other that they are under no legal duty to announce or otherwise publicly report the existence of this Agreement.
6.6 Non-Circumvention. Publisher agrees and acknowledges that Advertiser has proprietary relationships with advertisers, lead buyers, customers, other publishers, advertising networks, and Internet Property and domain owners (collectively, "Partners") that participate in Advertiser's Network or provide services to Advertiser. During the term of the Agreement and for a period of two (2) years after any expiration or termination hereof, neither Publisher nor any affiliated entity, shall, directly or indirectly, on behalf of itself or any other person or entity: with respect to any Partner that Publisher (or any affiliated entity) knows, reasonably should know, or subsequently learns has, or at any point during the term of the Agreement had, a relationship with Advertiser, (each a "Covered Partner"): (i) take any action, or plan to take any action, with the purpose or effect of circumventing Advertiser's relationship with any Covered Partner; (ii) serve as a publisher or source of impressions, clicks, or other advertising inventory for any Covered Partner; (iii) encourage or cause any Covered Partner to reduce or terminate its relationship with Advertiser; or (iv) collaborate or contract with any Covered Partner to monetize Internet traffic from the publisher's properties or (v) otherwise make any contact or communication with the purpose or effect of disrupting, or attempting to disrupt, the relationship between Advertiser and a Covered Partner. Notwithstanding the foregoing, to the extent that Publisher can show through reasonable evidence that a Partner had provided services to or obtained services from Publisher prior to the date of the Agreement, then Publisher shall not be prohibited from continuing such relationship. Publisher agrees that monetary damages for its breach, or threatened breach, of the foregoing restrictions will not be adequate and that Advertiser shall be entitled to: (a.) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b.) liquidated damages from Publisher (and not a penalty) in the amount equal to one hundred percent (100%) of the fees or commissions paid to Publisher for activities in violation of this Section 6.6 for the prior six (6) month period; and (c.) any and all other remedies available to Advertiser at law or in equity. Publisher acknowledges and agrees that the actual monetary damages arising from any breach of this Section 6.6 are difficult or impossible to quantify, but that the amount of liquidated damages specified in (b) above constitutes a reasonable estimate of such monetary damages.
6.7 Non-Solicitation. Furthermore, during the term of the Agreement and for two (2) years thereafter, neither Publisher nor any affiliated entity, directly or indirectly, either on behalf of itself or any third party, may knowingly solicit or engage in any communication with any current employee or contractor of Advertiser or any affiliated entity, or any individual who was an employee or contractor of Advertiser during the term, with the purpose or effect of inducing such person to terminate his or her relationship with Advertiser or compensating or engaging such person in any way to compete with the products or services of Advertiser.
6.8 Restrictive Covenant. During the term of this Agreement and for six (6) months thereafter, Publisher may not develop, market, license to others, or sell, or otherwise assist in the development or sale or licensing of, whether directly or indirectly, any software, technology, system or other materials or services that are the same as, similar to, or competitive to the Dashboard, Advertiser's Network, their related services, or Advertiser's proprietary optimization and behavioral advertisement targeting technology, methodology, or algorithms. Publisher acknowledges and agrees that the foregoing restriction is reasonable and necessary for Advertiser to protect its rights in its Confidential Information and trade secrets that it has invested substantial time and resources to develop.
6.9 Ownership and Use of Intellectual Property.
(a.) This Agreement is not intended to, and shall not affect, ownership by a Party of any of its intellectual property rights, content, products and services, and nothing set forth in this Agreement shall be construed as the assignment or transfer of any ownership rights in any of the foregoing from one Party to the other. Other than any express license set forth herein, nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed a license (by implication, estoppel or otherwise) under a Party's patent rights or other intellectual property rights. Nothing in this Agreement, and nothing in any statement made in connection with this Agreement, will be deemed an admission by a Party that any existing, planned or contemplated products, services or technology of the other Party infringes or does not infringe its (or a third party's) patent or other intellectual property rights or that the other Party's (or a third party's) patent or other intellectual property is valid. Likewise, no Party's performance according to the terms and conditions of this Agreement will in any way broaden the intellectual property rights of any other Party. Each Party reserves all rights not expressly granted under this Agreement.
(b.) Each Party hereby acknowledges and agrees that the other Party's intellectual property constitutes the other Party's valuable patent, trade secrets, commercially sensitive, and/or other Confidential Information, and all worldwide rights in, to and under the other Party's intellectual property specifically including without limitation, any and all worldwide patent, trademark, service mark, copyright, trade secret, industrial and moral rights and any other proprietary rights therein, whether registrable or not (collectively, the "Other Party's Intellectual Property") are exclusively owned by the other Party. Each Party shall use the Other Party's Intellectual Property only as expressly permitted in this Agreement, and shall not resell, redistribute or permit service bureau use of the Other Party's Intellectual Property under any circumstances. Additionally, each Party shall not, either directly or through a third party, modify, reverse-engineer, disassemble, translate, decompile or attempt to derive the underlying source code or protocols for the Other Party's Intellectual Property, use the Other Party's Intellectual Property to develop a competitive product or service, or merge it with any other product or service. In addition, each Party may not use the Other Party's Intellectual Property for purposes of benchmarking or competitive intelligence. Each Party shall faithfully reproduce without modification, and shall not alter, remove or obscure, any proprietary notices used on or in connection with the Other Party's Intellectual Property.
(c.) "Audience Drive" and its logo are trademarks owned by Advertiser, and all use thereof, together with any associated goodwill, shall inure to Advertiser's sole benefit. Any logos and trademarks owned by Publisher, and all use thereof, together with any associated goodwill, shall inure to Publisher's sole benefit. All other trademarks and service marks reflected in a Party's Intellectual Property are the property of their respective owners. Advertiser shall be the exclusive owner of all rights (including, without limitation, all copyrights and trademarks throughout the world) in any advertising material (including Forms) provided by Advertiser or its advertisers ("Advertising Material") in connection with this Agreement including, without limitation, in any modifications or alterations in the Advertising Materials, created pursuant to the Agreement, and all such material must be used and reproduced faithfully, without any modifications. For the duration of this Agreement and solely for the purpose of fulfilling Publisher's obligations under this Agreement, Advertiser hereby grants Publisher a world-wide, non-exclusive, non-transferable, revocable, limited, royalty-free license to use, copy, distribute, and make derivative works of the Advertising Materials. If Publisher creates any derivative works from Advertiser's Advertising Materials, it irrevocably assigns and transfers all ownership rights (including all copyrights) in those derivative works to Advertiser and agrees to execute and deliver all documents and take any other actions requested by Advertiser for the purpose of confirming, recording, perfecting or enforcing Advertiser's ownership rights in the Advertising Materials. In addition, Publisher waives and relinquishes all "moral rights" or similar rights throughout the world in any derivative works created pursuant to this Agreement.
(d.) The organization, graphics, design, compilation, architecture, magnetic translation, digital conversion, software and other matters related to the Dashboard, Advertiser's Network, their related services, Advertising Tags, Advertising Materials and any other services or materials provided by Advertiser to Publisher are protected under applicable copyright, trademark and other intellectual property laws. The usage, copying, reverse-engineering, decompilation, redistribution, transfer, licensing, disclosure, editing, modification, duplication, imitation, re-syndication or publication by Publisher of any part of the foregoing, other than as specifically contemplated hereunder or as expressly authorized by Advertiser in writing, is strictly prohibited. All copyright, trademark and other proprietary notices appearing in any of the foregoing must be displayed without alteration.
6.10 Acknowledgment. Publisher also acknowledges and agrees that its agreement to and compliance with Sections 6.6, 6.7, 6.8 and 6.9 above are a material inducement for Advertiser's consideration of its application and any grant of permission to participate in Advertiser's Network.
6.11 Injunctive Relief. The Parties agree that any breach of the obligations in this Section 6 will result in irreparable injury to Advertiser for which monetary damages alone would not be an adequate remedy. In the event of any such breach or threatened breach Advertiser will be entitled to specific performance and immediate injunctive or other equitable relief, without the necessity of posting a bond, against Publisher, its employees, consultants, other personnel, Publisher's affiliates and their respective officers, employees, agents, or other representatives. Any such relief shall be in addition to and not in lieu of any other relief by way of monetary damages or any other remedy in equity or at law that Advertiser shall have the right to pursue against Publisher and its affiliates and their respective officers, employees, agents, or other representatives.
Section 7. Term & Termination
7.1 Acceptance. Publisher may accept this Agreement by any reasonable means, and the following acts shall be conclusive evidence of consent: (a.) explicitly agreeing in an electronic, webpage, or paper form, (b.) obtaining Advertising Tags from Advertiser's website, (c.) using Advertising Tags, or (d.) using Advertiser's website or Dashboard or Advertiser's Network. Any reoccurrence of any of the foregoing actions constitutes a separate act of consent to this Agreement as of the date of such conduct.
7.2 Termination for Any Reason. Either Party may terminate the Agreement or any IO by giving the other Party written notice. If Advertiser gives notice, such notice shall be effective upon receipt. If Publisher gives notice, notice shall be effective two (2) business days following Advertiser's receipt thereof or upon Advertiser's acknowledgement that the Agreement is terminated. In the event of a Party's material breach of these Terms, termination shall be a remedy in addition to, and not in lieu of, any other remedies available in this contract, in law, or in equity.
7.3 Survival. Except as may be otherwise specified therein, the obligations in Sections 3.6, 3.8, and 5-12, as well as any other provisions hereof which, by their nature, are intended to survive termination of this Agreement (such as the definitions in Section 1), shall survive any such termination.
Section 8. Privacy and Data Collection
8.1 Opt-outs. Advertiser acknowledges that visitors may require that certain information not be disclosed or otherwise shared with third parties, such as Advertiser. To the extent a visitor has specified certain preferences regarding treatment of their data (including opting-out from having certain information collected or shared for behavioral advertising purposes), whether with Publisher's Internet Property or with a third party platform that Publisher uses, Publisher shall honor Users' opt-out choices in all respects. Publisher represents and warrants that it shall respect any and all User opt-out choices (including any opt-outs from behavioral advertising or sharing with advertising networks, whether made on Publisher's Internet Property or elsewhere), including, without limitation, any privacy settings that limit Publisher's collection, use, sharing, and storage of Non-personal Data and Personal Data. Without limiting the foregoing, if an IO contemplates that Publisher will cause Advertising Material to be circulated via e-mail, Publisher represents, warrants and covenants that it shall comply in all respects with CAN-SPAM as well as with all state laws relating to spam or unsolicited electronic communications. Publisher's obligations shall include, but not be limited to, the use of accurate and non-misleading "From", "Subject" and other header information, the maintenance and use of up-to-date suppression lists (and use of any suppression list furnished by Advertiser, if requested by Advertiser), the prominent labeling of each e-mail as an advertisement or solicitation and the inclusion in each e-mail of a valid physical postal address and Internet-based opt-out mechanism as required by CAN-SPAM, and the timely collection, addition to the relevant suppression lists and honoring of all opt-out requests. In particular, and without limiting any of the foregoing, Publisher shall ensure that all "From", "Subject" and other header information in e-mails sent by Publisher and its Sub-Publishers sufficiently identifies the sender of the e-mail; Publisher and the Sub-Publishers shall also comply fully with any instructions or guidelines that Advertiser provides relating to e-mail header information or the content of e-mails. Publisher shall not transfer the e-mail address of any User who has opted out except as strictly necessary to comply with CAN-SPAM, or to enable Advertiser to add the e-mail address to its own suppression list if Advertiser so requests. Publisher agrees to fulfill the obligations of a "designated sender" under CAN-SPAM if Advertiser so requests.
8.2 Publisher Representation & Warranty. Subject to the terms of this Agreement, Publisher represents, warrants, and covenants that (a.) It has the permission to use Personal Data (including, but not limited to, a User's picture and first name) when serving Ads;(b.) During the term of this Agreement, Publisher shall clearly and conspicuously maintain easy-to-understand privacy policies and other consent mechanisms on all Internet Properties that are compliant with all applicable Laws (including without limitation the GDPR) and that adequately disclose, and are legally sufficient to authorize, the collection, sharing and use of Personal Data and Non-personal Data for the purpose of all activities contemplated by this Agreement or agreed upon by the Parties, including, but not limited to, tracking, controlling, targeting, optimizing and improving advertisements, as well as marketing and re-marketing;(c.) Specifically, and without limiting any of the foregoing, all such privacy policies clearly disclose (i) that Advertising Tags and other technical means of tracking, including but not limited to cookies, pixels and flash objects, may be used in Advertising Material or in connection with Internet Properties to collect and share Non-personal Data; and (ii) that third parties serve advertisements in connection with Internet Properties; and(d.) All Internet Properties owned or operated by Sub-Publishers are and shall remain fully compliant with the requirements in this Section 8.4.
8.3 Ownership of Data. As between Advertiser and Publisher, all Personal Data and Non-personal data collected by either Party as a result of an Action or a User's interaction with an advertisement will be exclusively owned by Advertiser and, to the extent necessary, upon Publisher's collection of any such data from a User, Publisher thereby transfers any right or interest in such data to Advertiser and shall not use or resell that data for any purpose. Notwithstanding Advertiser's ownership of such data, Publisher may use data commonly captured by web servers, such as clicks or impressions, the user-agent, the IP address, the referrer link, and date and time the click or impression, in connection with this Agreement and for internal research and analysis.
8.4 Privacy and Security. Publisher shall comply (and shall require its employees, agents and Sub-Publishers to comply) with all applicable Laws regarding the collection, transmission, use, and storage of Non-personal Data or Personal Data. This compliance obligation includes, but is not limited to, compliance with the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et. seq.) and the FTC's Safeguards Rule (16 CFR Part 314). Specifically, and without limiting the foregoing, Publisher shall maintain (and shall require its agents and Sub-Publishers to maintain) an Information Security Program (as that term is defined in the Safeguards Rule) that ensures the security and confidentiality of Non-personal or Personal Data and that protects against anticipated threats or unauthorized access to such information.
Section 9. Representations, Covenants, and Warranties
9.1 Representations, Warranties and Covenants of the Parties.
1. General Representations, Warranties, and Covenants.
(a.) Each Party hereby represents, warrants and covenants to the other Party that: (i.) it has the full power and authority to enter into the Agreement and to carry out its obligations hereunder; (ii.) when executed and delivered by such Party, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms and conditions; (iii.) it will comply with all federal, state and local laws, rules, and regulations applicable to such Party's performance under the Agreement, including, without limitation, the CAN-SPAM Act of 2003 and all applicable FTC rulings and guidelines; and (iv.) performance of its obligations will not violate its other agreements or a third party's rights.
(c.) Publisher additionally represents, warrants and covenants to Advertiser that if a Consumer associated with a Lead sold or distributed hereunder submits a Form, at the time of the Consumer's submission of the Form such Consumer (i) consented to the distribution by Publisher of such Consumer's Consumer Information to Providers for the purpose of contacting the Consumer and providing a requested quotation or offer for the product or service indicated or obtaining additional information for the purpose of providing a requested quotation or offer, and (ii) consented to each such Provider confirming the Consumer's Consumer Information through the use of a Consumer report, expressly including a credit report and, as applicable, a driving record.
2. Additional Representations, Warranties, and Covenants.
(I) In the event that any Leads provided to Advertiser under the Agreement are collected by Publisher inserting (by iFrame or otherwise) a form, template or other mechanism hosted and operated by Advertiser through which Consumers submit information (a "Audience Drive Form"), then the following terms shall apply.
(b) In the event that Advertiser consents to the use of a Sub-Publisher, then Publisher represents, warrants and covenants that such Sub-Publisher shall strictly comply with the requirements in Paragraph 1(a), Publisher shall monitor such Sub-Publisher and ensure such compliance, and Publisher shall immediately notify Advertiser of any non-compliance. Any breach of the requirements in Paragraph 1(a) by a Sub-Publisher shall be deemed to be a breach by Publisher of this Addendum.
(II) In the event that any Leads provided to Advertiser under the Agreement are collected by Publisher using a form, template or other mechanism that is not a Audience Drive Form, then the following terms shall apply.
(a) Publisher represents, warrants and agrees that Leads sold to Advertiser pursuant to the Existing Contract will meet each of the following criteria:
(i) The Leads will be obtained from individuals who represent that they are specifically interested in obtaining quotes or offers for the applicable type of product or service indicated;
(ii) The Leads will be collected from mediums where Publisher or its Sub-Publishers, affiliates or lead sellers have included notification, through their respective data collection vehicles, that the individual's information is being collected for the purposes of obtaining quotes or offers for specific products or services and that the individual may be contacted by the providers of the indicated product or service or their respective agents, affiliates, carriers, brokers or third party service providers;
(iii) The Leads will not be submitted or sold to Publisher without the individual's permission to use or transmit their Leads for the purpose of obtaining quotes, offers or information for or about the indicated product or service;
(iv) The Leads will be collected from individuals who have provided prior express written consent required by law or regulation (including, but not limited to, TCPA and Do Not Call List requirements) so that Advertiser or providers of the indicated product or service or their respective agents, affiliates, carriers, brokers or third party service providers may call any telephone or mobile phone numbers contained within Leads for the purpose of providing quotes or offers or connecting the individual with providers of the indicated product or service or their respective agents, affiliates, carriers, brokers or third party service providers , including but not limited to through the use of an automatic telephone dialing system or artificial or prerecorded voice message and/or text message and that such individual has been informed that his/her consent is not a condition of purchase;
(v) Where the adequacy of the Consumer consent related to specific Leads is called into question, Publisher agrees to provide to Advertiser, upon request, proof of such express written consent for all Leads provided to Advertiser, which proof will include, in addition to all other information or evidence reasonably requested from Advertiser, screenshots of the disclaimer and consent language appearing on mediums from which such Lead was collected, the IP address of the Consumer who provided the Lead information, the IP address of the source of the Lead and the date and time stamp indicating the time the Lead was collected, and in the case of a telemarketing campaign by Publisher, an audio recording of the Consumer's verbal consent (the "Evidence");
(vi) Publisher will utilize record keeping systems that can establish that the prior express written consent referenced in the immediately preceding paragraph can be conclusively established under applicable law or regulation, and legally sufficient evidence of such consent will be maintained by Publisher and made available to Advertiser upon request at any time, at least until the conclusion of any applicable statute of limitations under applicable law or regulation (no less than 5 years from the delivery of the Lead), including but not limited to those laws and regulations identified in the immediately preceding paragraph;
(vii) The Lead will not, to the best of the Publisher's knowledge, contain mapping errors, business rule errors and/or invalid Consumer data;
(viii) The Lead will not include information from individuals, acquired through remarketing programs or from individuals who previously submitted a request for a quote or offer for the indicated product or service and did not provide explicit permission to resubmit their information for additional quotes or offers for the same product or service; and
(b) If Publisher purchased or obtained the Leads from a third party or entity ("Previous Seller"), then the Previous Seller will have contractually agreed to comply with the Leads criteria identified in Paragraph 2(a) and Publisher shall use commercially reasonable efforts to negotiate a third party beneficiary clause in its contract with the Previous Seller providing Advertiser the right to enforce such Leads criteria provisions against Previous Seller and obtain from Previous Seller copies of the relevant lead forms, consumer consent language and Evidence for Leads provided by such Previous Seller. In addition, the contract with Previous Seller will provide that upon written request Previous Seller will provide any Evidence in its possession to Publisher. Publisher will promptly provide such Evidence to Advertiser and in the event such Evidence is not in Publisher's possession, Publisher will use commercially reasonable efforts to assist Advertiser in obtaining Evidence from a Previous Seller.
(c) Publisher shall provide Advertiser with screenshots of all submission forms from which Leads are collected (a "Form"). Such screenshots shall be provided in a format that allows Advertiser to view each Form's consumer consent language content and placement within a web page or otherwise. Unless required by applicable laws, Publisher agrees that it will not make any material change to the content or placement of the consumer consent language in its Form without notifying Advertiser in writing (email notice sufficing), will submit to Advertiser screenshots all proposed material changes to the content and placement of the consumer consent language in its Forms and will not provide any Leads to Advertiser from any Forms where Advertiser has not approved the content and placement of the consumer consent language. Notwithstanding the foregoing requirements, and for the avoidance of doubt, Publisher's submission to Advertiser of existing or proposed Forms shall in no way impact or waive Publisher's representations, covenants obligations with respect to the Form or Leads.
(d) Beginning on the Effective Date and continuing throughout the Term of the Existing Agreement and for five (5) years thereafter, Publisher agrees to procure and maintain in force the following insurance policies (the "Insurance Policies"): (i) comprehensive general liability insurance (including contractual liability coverage for indemnification) with minimum limits of One Million (\$1,000,000) per occurrence and Two Million (\$2,000,000) in the aggregate; and (ii) errors and omissions or professional liability insurance with minimum limits of One Million (\$1,000,000) combined single limit. The Insurance Policies shall (a) name Advertiser and each subsequent Lead buyer as an additional insured, as their respective interests may appear, and (b) be placed with insurers reasonably acceptable to Advertiser, having a Best's rating of no less than "A-" and licensed to do business in Pennsylvania and New Jersey. Publisher shall furnish to Advertiser upon written request an insurance certificate evidencing each of the Insurance Policies and the additional insureds. Publisher shall provide thirty (30) days prior written notice to Advertiser in the event of cancellation of any of the Insurance Policies.
(e) Notwithstanding anything to the contrary in the Existing Agreement, any subsequent purchaser of the Lead from Advertiser shall be a third party beneficiary of the Existing Agreement and this Addendum with full rights to enforce the representations, warranties, covenants and indemnities in the Existing Agreement and herein. In addition, notwithstanding anything to the contrary in the Existing Agreement, Advertiser and Publisher may disclose the terms and conditions of this Addendum, the name of Publisher, any Sub-Publisher and any Confidential Information necessary to comply with or enforce the provisions of this Addendum to any such third party beneficiary.
(III) All Publishers engaging in activities subject to subparagraphs (I) and/or (II) above shall also be subject to the following additional provisions:
- Publisher shall implement and maintain (review, modify and update as appropriate) reasonable policies and procedures to ensure: (i) all Leads generated conform to the express written consent requirements of the TCPA, and (ii) Publisher has documented and can produce evidence of such consent, for each Lead. Publisher shall provide a copy of its TCPA policies and procedures to Advertiser upon request. Publisher shall use its best efforts to cooperate with Advertiser in connection with any claims or requests for information relating to Leads from third parties, including, without limitation, claims or requests from any governmental entity or regulatory body, by providing the Evidence in a commercially reasonable time period. In the event Publisher receives a subpoena or similar notice or request from any judicial, administrative or other party arising out of or in connection with this Addendum or Leads sold to Advertiser, Publisher shall promptly forward a copy of such subpoena, notice or request to Advertiser, and afford Advertiser the opportunity to be part of the decision making with regard thereto. Advertiser or its agent, at Leadnomics' expense, shall have the right to audit such records and procedures of Publisher as necessary to verify Publisher's compliance with the terms of this Addendum; provided that such audit shall be during regular business hours and upon not less than five (5) business days' prior written notice to Publisher.
- If Advertiser becomes aware of any pattern of activity or practice of Publisher that violates the TCPA or its implementing regulations, Advertiser will require Publisher to promptly take reasonable steps to end such violation. If Publisher becomes aware of any violation of this Addendum or the TCPA by any member of its workforce, its Sub-Publishers, subcontractors or agents Publisher shall promptly notify Advertiser and take reasonable steps to end such violation. If Publisher fails to take promptly all reasonable steps necessary to end any such violation, Advertiser may immediately terminate the Existing Agreement. Notwithstanding the foregoing, Paragraphs 3, 4 and 5 of this Addendum shall survive any expiration or termination of the Existing Agreement and continue in full force and effect for a period of five (5) years.
9.2 Disclaimer of Warranties Generally. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THESE TERMS, ANY SERVICE, PRODUCT, TOOL, SYSTEM OR MATERIAL (INCLUDING BUT LIMITED TO ADVERTISER'S NETWORK, ADVERTISING MATERIALS, AND DASHBOARD) THE ADVERTISER PROVIDES IS ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND PUBLISHER'S USE OF ANY MATERIALS, PRODUCTS, TOOLS, SYSTEMS OR SERVICES IS AT ITS OWN RISK. ADVERTISER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPLIANCE WITH LAW, SECURITY, ABSENCE OF VIRUSES OR OTHER MALICIOUS SOFTWARE, UNINTERRUPTED USE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FURTHERMORE, ADVERTISER DOES NOT WARRANT THAT THE FOREGOING WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, TIMELY, ERROR-FREE, RELIABLE, OR UP-TO-DATE. PUBLISHER ALSO SPECIFICALLY ACKNOWLEDGES THAT THE PRODUCTS AND SERVICES PROMOTED IN THE ADVERTISING MATERIAL ARE OFFERED BY THIRD PARTIES AND NOT BY ADVERTISER, AND THAT ADVERTISER HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH PRODUCTS AND SERVICES. ACCORDINGLY, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ADVERTISER SHALL HAVE NO LIABILITY TO PUBLISHER OR ANY THIRD PARTY ARISING FROM ADVERTISING MATERIAL (OR PORTIONS THEREOF), PRODUCTS, SERVICES OR INTERNET PROPERTIES THAT ARE PROVIDED OR CONTROLLED BY THIRD PARTIES.
9.3 No Control of Internet. UNFORESEEABLE EVENTS OF NATURE OR ACTS OF GOVERNMENT, AS WELL AS ACTION OR INACTION OF THIRD PARTIES, CAN IMPAIR OR DISRUPT EACH PARTY'S OR THIRD PARTIES' CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) OR THE AVAILABILITY OF INTERNET SERVICES AND COMMUNICATIONS. THESE ACTIONS AND EVENTS INCLUDE MALEVOLENT ACTS BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, DENIAL OF SERVICE ATTACKS. ADVERTISER CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, EXCEPT FOR ITS OWN INTENTIONALLY WRONGFUL ACTS, ADVERTISER HEREBY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE FAILURE OF DATA CARRIAGE, MALEVOLENT ACTS BY THIRD PARTIES, UNAVAILABILITY OF THE INTERNET OR PORTIONS THEREOF, OR ALL OTHER SIMILAR SUCH EVENTS. TO THE EXTENT THE FOREGOING DISCLAIMERS ARE NOT PERMITTED UNDER APPLICABLE LAW, THEY WILL BE LIMITED SO AS TO BE GIVEN EFFECT TO THE GREATEST EXTENT PERMITTED BY LAW.
9.4 No Guarantee of Profits or Income. Publisher agree and acknowledges that Advertiser, its affiliates, advertisers, networks, and their respective related entities, agents, officers, directors, members, managers, shareholders and employees, make no representation whatsoever regarding profits, income, or money that Publisher may generate from Advertiser's Network or from entering into this Agreement. Any expression by Advertiser in this regard is an expression of opinion only. Publisher acknowledges that it was not induced or persuaded to enter into this Agreement and that it entered into this Agreement by its own free will, without any force or duress, only after thorough and thoughtful investigation, and after having the opportunity to obtain independent advice and counsel.
Section 10. Limitations of Liability
IN NO EVENT SHALL ADVERTISER BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN ANY WAY RELATING TO THIS AGREEMENT OR ANY MATERIALS, SERVICES, TOOLS OR SYSTEMS PROVIDED BY ADVERTISER, EVEN IF ADVERTISER HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FURTHERMORE, ADVERTISER'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM OR DAMAGE OR SERIES OF CLAIMS OR DAMAGES IS LIMITED TO THE NET AMOUNT PAID BY ADVERTISER TO PUBLISHER DURING THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH OCCURRED THE ACTIVITY UNDERLYING THE LATEST CLAIM. Publisher acknowledges and agrees that the foregoing exclusions and limitations of liability are reasonable and form a material inducement for Advertiser's consideration of its application and any grant of permission to participate in Advertiser's Network, and that Advertiser would not be able to pay the level of compensation under this Agreement were it not able to rely on such exclusions and limitations of liability. To the extent the foregoing exclusions and limitations of liability are not permitted under applicable law, either party's liability in such case will be limited to the greatest extent permitted by law.
Section 11. Indemnification
11.1 Indemnification. Publisher agrees to defend, indemnify and hold harmless Advertiser, its affiliates and its and their respective directors, partners, officers, employees, shareholders, members and agents, (collectively, "Indemnitees") from and against any and all claims, costs, losses, damages, judgments, fines, penalties, and expenses (including reasonable attorneys' fees) suffered, sustained or incurred by Advertiser in connection with, arising out of, or otherwise related to (a.) any actual or alleged breach by a Publisher or a Sub-Publisher of the Publisher's representations, warranties, or obligations in this Agreement; (b.) the negligence, recklessness, or intentional misconduct of the Publisher, a Sub-Publisher or any of their agents or personnel; (c.) an actual or alleged violation of any Law by Publisher, a Sub-Publisher or any of their agents or personnel; or (d.) Publisher's or the Sub-Publishers' Internet Properties.
11.2 Indemnification Rules. Upon a determination by Advertiser that a third party claim or demand against an Indemnitee is appropriately subject to indemnification, Advertiser shall promptly notify the Publisher in writing of the nature of the claim and the names and addresses of the persons involved in or having an interest in such claim. Publisher may assume control of the defense of such claim through counsel acceptable to Advertiser, and Advertiser and each Indemnitee may participate in its defense through counsel of their choosing at their own expense (except that the expense shall be borne by Publisher if Publisher does not assume lead defense of such claim). Publisher shall be entitled to exercise control of the settlement of any claim giving rise to the claim to indemnification, provided that before entering into any settlement of the claim, Publisher shall be required to obtain the prior written approval of Advertiser, if pursuant to or as a result of such settlement, any obligation would be imposed against any Indemnitee or any admission of liability or responsibility would be made.
Section 12. Miscellaneous
12.1 Independent Contractors. The Parties are independent contractors and nothing contained in this Agreement shall be deemed to constitute either Party an agent, representative, partner, joint venturer or employee of the other Party for any purpose. Neither Party has, nor shall represent that it has, the authority to bind the other or to incur any liability on behalf of the other, nor to direct the employees of the other.
12.2 Conflict. In the event of a direct inconsistency between the IO and these terms and conditions, the IO will prevail with respect to the services and activities under such IO.
12.3 Governing Law; Venue; Class Actions; Jury Trials. The validity, construction, and performance of this Agreement shall be governed by the laws of the United States of America and the State of Delaware, without giving effect to the conflict of laws rules thereof to the extent that the application of the laws of another jurisdiction would be required thereby. Each Party consents to the sole and exclusive jurisdiction of the federal and state courts located in Wilmington, Delaware, in all actions arising under this Agreement and hereby irrevocably waives any claim that such court lacks jurisdiction or that such venue or forum is inconvenient. Advertiser has the sole discretion of electing to adjudicate any disputes and actions arising out of this Agreement by: (i) bringing suite in federal or state court in Wilmington, Delaware; or (ii) binding arbitration administered by, in the event that Publisher is located within the United States, the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules and Expedited Procedures (Rules E-1-E-10) or, in the event that Publisher is located outside the United States, the International Centre for Dispute Resolution ("ICDR") in accordance with its International Arbitration Rules, as modified below. The place of arbitration and all hearings will be Wilmington, DE, USA. The arbitration will be conducted by a single arbitrator unaffiliated with either Party and be in English; all documents and other evidence not originally in the English language will be provided in both its original language and in an English translation. TO THE EXTENT PERMITTED BY LAW, PUBLISHER AGREES THAT IT WILL NOT BRING, JOIN OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AS TO ANY CLAIM, DISPUTE OR CONTROVERSY THAT PUBLISHER MAY HAVE AGAINST ADVERTISER, ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, REPRESENTATIVES AND ASSIGNS. PUBLISHER AGREES TO THE ENTRY OF INJUNCTIVE RELIEF TO STOP SUCH A LAWSUIT OR TO REMOVE PUBLISHER AS A PARTICIPANT IN THE SUIT. PUBLISHER AGREES TO PAY THE ATTORNEY'S FEES AND COURT COSTS THAT ADVERTISER INCURS IN SEEKING SUCH RELIEF. THIS PROVISION PREVENTING PUBLISHER FROM BRINGING, JOINING OR PARTICIPATING IN CLASS ACTION LAWSUITS IS AN INDEPENDENT AGREEMENT AND DOES NOT CONSTITUTE A WAIVER OF ANY OF PUBLISHER'S RIGHTS AND REMEDIES TO PURSUE A CLAIM INDIVIDUALLY AND NOT AS A CLASS ACTION. ADVERTISER AND PUBLISHER EACH (A) AGREE NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS AGREEMENT THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT TO WHICH ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.
12.4 Entire Agreement; Order of Precedence. This Agreement, including any IO(s) hereunder and the General Terms, contains the entire understanding and agreement of the Parties with respect to the subject matter contained herein. This Agreement supersedes all prior oral or written understandings and agreements relating thereto except as expressly otherwise provided. In the event of any conflict or inconsistency between the provisions of these Terms and those of an IO or the General Terms, the Agreement shall be interpreted using the following order of precedence: (a.) the IO; (b.) these Terms; and (c.) the General Terms.
12.5 Force Majeure. Neither Party shall be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, such as riots, war, public disturbance, strike, labor dispute, fire, explosion, storm, flood, acts of God or acts of terrorism. In such event, the affected Party, upon prompt written notice to the other Party, will be excused from performance to the extent of the interference. The affected Party must take all reasonable steps to remove the causes of non-performance and resume performance as soon as such causes are removed.
12.6 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to any law, the remaining provisions shall remain in full force and effect as if said provision never existed, provided that each Party is able to obtain substantially all of the benefits contemplated by this Agreement.
12.7 Assignment. Publisher may not assign this Agreement, in whole or in part, and may not assign or delegate any of its rights or obligations hereunder (except as expressly permitted in Section 3.6 above) without Advertiser's prior written consent, which may be granted or withheld in Advertiser's sole discretion. Advertiser may assign this Agreement in whole or in part. This Agreement shall bind all permitted successors or assigns.
12.8 Amendments & Waiver. Advertiser may amend or change this Agreement from time to time and shall post such amendment to its website. Publisher agrees that it accepts any such amendment or change in any manner permitted by the preamble to these Terms or Section 7.1. Any proposed amendment or change by Publisher will only be effective by a writing signed by both parties. No failure or delay by either Party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. No waiver shall be construed or effective unless it is in writing and signed by the Party to be charged.
12.9 No Third-Party Beneficiaries. Except for Section 11, nothing in this Agreement, either express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
12.10 No Presumption. The Parties acknowledge and agree that the Parties have participated jointly in the negotiation and drafting of this Agreement. Accordingly, any applicable law that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it has no application and is expressly waived. If any claim is made by a Party relating to any conflict, omission or ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will be implied because this Agreement was prepared by or at the request of any Party or its counsel.
12.11 Headings and Preamble. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. The preamble is hereby incorporated as if set forth herein.
12.12 Attorneys' Fees. In the event that Advertiser brings an action or proceeding to enforce, or exercise its rights under, this Agreement and substantially prevails in such action or proceeding, it shall be entitled, in addition to its other remedies as specified in this Agreement or available at law or in equity, to reimbursement of its reasonable attorneys' fees and other legal costs incurred in bringing such action or proceeding.
12.13 Electronic Execution and Disclosures. Publisher acknowledges and agrees that by clicking on the button labeled "I Agree" or "I Accept" or such similar or equivalent buttons, checkboxes or links as may be designated by Advertiser to accept these Terms, Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract. Publisher acknowledges that Publisher's electronic submissions constitute Publisher's agreement and intent to be bound by these Terms. Pursuant to any applicable Laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "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 SERVICES OFFERED BY ADVERTISER. Further, Publisher hereby waives any rights or requirements under any 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.