Regardless of the effective date of this Agreement, IR shall have sole discretion to determine the date that any Publisher is allowed to participate in the Publisher Program.
This Agreement is subject to change in IR’s sole discretion and without prior notice. Changes may include, without limitation, the payout structure, payout amounts, payment procedures and other policies related to the Publisher Program; provided, however, that: (i) any amendment or modification to the arbitration provisions, prohibition on class action provisions, or any other provisions applicable to dispute resolution (collectively “Dispute Resolution Provisions”) will not apply to any disputes occurring before the amendment or modification; and (ii) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) will not apply to compensable activity occurring before the applicable amendment or modification.
The latest version of this Agreement will be posted on the IR’s website (www.insurancerevenue.com) (“IR Website”). You must review this Agreement prior to using the IR Website or participating in the Publisher Program. Your continued participation in the Publisher Program or use of the IR Website after any modification to this Agreement constitutes your consent to such modifications.
You agree to rely solely on this Agreement in making your decision to participate in the Publisher Program and that you are not relying on any representations, guarantees or statements from any person (including officers, directors, employees or agents of IR) other than as stated in this Agreement.
In the event the Parties wish to enter into an insertion order (“Insertion Order” or “IO”), such IO will only be enforceable and binding on the Parties upon execution by both Parties. Any IO submitted by or to IR shall be deemed incorporated into this Agreement by reference. Any conflicts between such IO and this Agreement shall be superseded and governed by this Agreement.
TERM AND TERMINATION:
The term of this Agreement begins upon IR’s acceptance of you into the Publisher Program and ends when terminated by either Party as set forth herein. Publisher may terminate this Agreement upon three days’ written notice to IR. IR may terminate this Agreement at any time and for any reason in IR’s sole discretion including, without limitation, (i) where IR believes Publisher is in breach of this Agreement; (ii) where IR believes that any website owned, operated, controlled or used by Publisher (“Publisher Website”) or any e-mail database owned, operated, controlled or used by Publisher (“Publisher Database”) is unsuitable for the Publisher Program; (iii) IR believes Publisher is engaging in deceptive marketing; (iv) IR believes Publisher is conducting permission-based e-mail marketing that does not fully comply with all applicable international, federal and state laws, rules and regulations regarding e-mail marketing including, but not limited to, the CAN-SPAM Act of 2003, as amended from time to time (“CAN-SPAM”); or (v) upon the dissolution or insolvency of either Party. You are only eligible to earn Commissions (defined below) on transactions occurring during the term of this Agreement and in full compliance with all of the terms and conditions of this Agreement. Upon termination of this Agreement (1) you immediately must cease using, and will remove from all Publisher Websites, any and all Content (see Content section below) and/or other materials provided to you from IR; (2) you immediately must cease transmitting any and all e-mails in connection with any Advertising Campaign (defined below); (3) any and all licenses and rights granted to you in connection with this Agreement immediately shall cease and terminate; and (4) any and all Confidential Information (defined below), Content or proprietary information of IR (including any confidential or proprietary information of any of IR’s advertiser) in your possession or control immediately must be returned or destroyed. If requested, you will certify in writing that all such confidential and/or proprietary information has been returned or destroyed.
Applying or registering with IR confers no right to participate in the Publisher Program. Your participation in the Publisher Program is subject to review and approval by IR, which may be withheld in its sole discretion. Upon IR’s acceptance of you as an Publisher, IR grants to you a non-exclusive, non-transferable, revocable and limited license to use the Content made available via the Publisher Program for each Advertising Campaign solely and exclusively for your efforts to market the products and services featured in the applicable Advertising Campaign and under the terms and conditions contained herein. IR retains sole and exclusive ownership of all Content and other information developed by IR or supplied to you at any time in connection with this Agreement.
IR will provide you with certain marketing pieces created by IR or its advertisers for the Publisher Program. IR may post various creative materials, text links and banner advertisements (collectively “Content”) on the IR Website for download, use and publication by Publishers subject to the license set forth above and the other provisions of this Agreement. IR may terminate your right to use the Content in its sole discretion at any time and without prior notice. Subject to the terms and of the applicable Advertising Campaign offered by an Advertiser, You may only use Content to generate valid sales, leads, applications, registrations, clicks, impressions or other compensable activities (collectively “Compensable Transactions”). Unless otherwise stated in writing by IR, all Content provided to Publisher with any Advertising Campaign must include, in unaltered form, the IR special transaction tracking codes as embedded in all such Content (the “Transaction Tracking Codes”). You will not modify, circumvent, impair, disable or otherwise interfere with any Transaction Tracking Codes or other technology or methodology required or provided by IR in connection to the Content. IR may change or revise the Content made available in its sole discretion at any time and without prior notice. You agree to use only the most recent version of the Content posted on the IR Website. You will not alter, modify or otherwise change the Content in any manner whatsoever. You will only use Content supplied by IR that is posted on the IR Website unless you receive written notice from IR to use your own creative. Any use, or the attempted use, of any marketing materials other than the Content provided by IR may result in the immediate termination of this Agreement without notice and will result in the forfeiture of any and all Commissions due to you.
You agree that IR may direct the placement of Content on your websites. If such direction is not given, you may place Content as you deem reasonable, but always subject to the terms and conditions of this Agreement, the terms relating to the particular Advertising Campaign, and all applicable statutes, rules and regulations. Notwithstanding the foregoing, you will comply immediately with any request by IR to modify, alter or change the positioning, placement, frequency or other editorial decisions related to Content. You immediately must remove Content upon receiving instructions from IR, or upon the termination or expiration of any Advertising Campaign or this Agreement.
You will NOT use brand names, trademarks or other intellectual property (in whole or in part, directly or indirectly) (collectively “Third Party IP”) of any other party in any of your creative or in other marketing strategy you may employ, including without limitation in the subject or from lines, or body of any commercial e-mail transmission. You will not Third Party IP to direct traffic to any Publisher Websites or Advertiser websites including, but not limited to, purchasing keywords from a search engine service provider that includes such Third Party IP.
You will comply with the Quality Control Guidelines provided herein, and you will not use any unfair, deceptive or abusive acts or practices to generate Compensable Transactions. Failure to comply will result in the forfeiture of all fees due and owing you, and you will be responsible to reimburse IR for any fees paid to you for such noncompliant activities. Please refer to the FTC Act Section 5 and the Dodd-Frank Act to understand what is meant by unfair, deceptive or abusive acts or practices. Notwithstanding the foregoing, IR will be the final arbiter of activity that is deemed non-compliant with the Quality Control Guidelines or that is unfair, deceptive or abusive.
[make sure this is in the QC Guidelines]:You will not: (i) use incentivized offers, create the appearance of incentivized offers, establish or cause to be established any promotion that provides any incentives, sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Compensable Transactions, or otherwise attempt to induce Internet users to click on the Content or perform any action through any other incentives, without obtaining the prior written approval of IR; (ii) place any statement in close proximity to the Content requesting e-mail recipients or Internet users "click" on the Content (e.g., "Please click here"); (iii) place misleading or deceptive statements in close proximity to the Content; (iv) take control of a user's computer by delivering advertisements that a user of a computer cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (v) install or execute on another's computer one or more additional software program(s) without consent of the user (upon obtaining such consent, Publisher must provide instructions to disable the software, such that the software is easily identifiable and the removal of which can be performed without undue effort or special knowledge by the user of the computer); (vii) distribute spyware or other similar or harmful software; or (viii) redirect traffic to a website other than the website listed by the Advertiser. The Publisher Websites must be fully functional at all levels. "Under construction" pages or sections are not permitted. Spawning process pop-ups are also prohibited.
PROHIBITED USE OF INSURANCE REVENUE’S NAME AND CONTACT INFORMATION:
You are prohibited from posting Insurance Revenue’s name and contact information on any Publisher Websites. You must list your actual business name (or individual name, if doing business as a sole proprietorship), business or mailing address, telephone number and email address on any website, blog or other internet property owned, operated, controlled or used by you.
During the term of this Agreement you will maintain accurate books and records relating to all of your activities, including without limitation your use of Content, your own creative, and suppression lists for email campaigns. You will allow IR or its designee during the term of this Agreement and for a period of six months after termination, to examine, inspect, audit and review (collectively “Audit”) all such books, records and any source documents used in the preparation during normal business hours upon written notice to you at least seven days prior to the commencement of any such Audit. Such Audit will be at IR’s sole cost and expense and will be limited to those books and records that relate to your activities as an Publisher. Notwithstanding the foregoing, if IR discovers any misconduct associated with your activities, then the Audit shall be at the sole cost and expense of Publisher, payable upon demand.
IR shall pay commissions according to the payment terms of the applicable Advertising Campaign (“Commissions”) as set forth in the Publisher Program, on the IR Website or as specified in an applicable IO. IR shall pay Commissions based on the Compensable Transactions recorded by the Transaction Tracking Codes approximately thirty days after the last day of a calendar month for Commissions earned in that month or sooner in IR’s sole discretion. All determinations made by IR in connection with the Transaction Tracking Codes, Compensable Transactions and any associated payments due to Publisher shall be final and binding on Publisher. Payments will be made to Publisher provided that the Publisher account has reached a minimum of one hundred dollars (\$100.00) (“Payment Threshold”) in accrued revenues. Where an account has not reached the Payment Threshold, the amount due Publisher will roll over to the next month until an amount equal to or greater than the Payment Threshold has been reached. Upon termination of this Agreement, Commissions due and payable to Publisher (including amounts below the Payment Threshold) will be paid at the next regularly scheduled billing cycle. IR, in its sole discretion, may withhold any and all payments due and owing to Publisher until the Advertiser has paid IR for the associated Advertising Campaign. IR, in its sole discretion, may reduce any and all payments owed to Publisher where the applicable Advertiser has refused to make the corresponding payments to IR. Notwithstanding the foregoing, IR’s services do not involve investigating or resolving any claim or dispute involving Publisher and any Advertiser or other third party.
IR will make available to Publisher the data used to determine Publisher’s Commissions (the “Data”). Any questions or disputes regarding the Data must be submitted in writing to IR within five days of the date the Data is made available to Publisher, otherwise the Data will be deemed accurate and accepted by Publisher. IR will investigate any Data-related questions or disputes and shall resolve such questions or disputes in its sole discretion. If, due to any impairment of the Transaction Tracking Codes or for any other reason, IR is unable to provide Publisher with accurate or complete Data, IR shall calculate Compensable Transactions based on (i) Publisher’s average monthly Compensable Transactions recorded by IR for the applicable Advertising Campaign, prorated for any shorter or longer period of time, where data is available to calculate a monthly average, or (ii) such amount that IR determines is due and owing in its sole discretion where data needed to calculate Publisher’s average monthly Compensable Transactions is unavailable (collectively “Projected Compensable Transactions”).
Publisher is responsible for all federal, state and local sales, use, property, excise or other taxes imposed on or with respect to its activities except taxes levied on IR’s net income.
Any business partners, associates or third party contractors of Publisher that participate in or perform any activities for Publisher as a part of the Publisher Program shall be deemed “Sub-Publishers.” ALL SUB-PUBLISHERS MUST BE PRE-APPROVED IN WRITING BY IR. It is Publisher’s sole responsibility to request such approval. IR reserves the right to withhold or refuse approval of any Sub-Publisher in its sole discretion and may revoke its approval of a Sub-Publisher at any time for any reason and without prior notice. All Sub-Publishers must meet the same criteria as Publisher for approval and must comply with the same terms and conditions as Publisher as set forth in this Agreement. Publisher shall be jointly and severally liable with such Sub-Publishers for the acts or omissions of its Sub-Publishers. IR may revoke approval of Publisher’s participation in any Advertising Campaign or terminate this Agreement based on the acts or omissions of Publisher’s Sub-Publishers.
Publisher agrees to indemnify, defend and hold harmless IR and its directors, officers, shareholders, employees, agents and publishers from and against any and all third party actions, claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs arising out of or related to the acts, errors or omissions of the Publisher, its Sub-Publishers, or any of the Publisher’s or Sub-Publishers’ officers, directors, employees, agents or publishers, or any third party acting on behalf of any of the foregoing, in connection with the performance of its obligations under this Agreement, any applicable IO, any applicable Advertising Campaign, or any breach of this Agreement.
E-MAIL MARKETING POLICY/CAN-SPAM COMPLIANCE:
Any email campaigns must be with sent only to persons who have given their consent to receive such marketing messages. Prior to sending any commercial e-mail in connection with the Publisher Program, Publisher shall provide IR with a list of Internet protocol (“IP”) addresses and domain names that it will use in connection with an Advertising Campaign. Upon request from IR, Publisher immediately must produce the name, date, time, IP address and referral uniform resource locator (“URL”) where the applicable consumers granted Publisher affirmative consent. Publisher is solely responsible for all consumer complaints, fines and penalties relating to e-mail campaigns conducted by Publisher.
Publisher will respond to all consumer complaints within forty-eight (48) hours of receipt. Besides all other available remedies, IR may withhold and suspend Commission payments until all outstanding consumer complaints are resolved to IR’s satisfaction. All costs associated with such required actions shall be deducted from the Publisher Commission. Publisher will comply with all applicable federal, state and local laws, rules and regulations, including without limitation the Federal Trade Commission implementing regulations, CAN-SPAM, and any international laws, rules and regulations regarding its e-mail marketing. Publisher acknowledges that any failure to comply with this Section may, in IR’s sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions owed to Publisher by IR.
IT IS YOUR OBLIGATION TO UNDERSTAND AND COMPLY WITH ALL STATUTES, RULES AND REGULATIONS APPLICABLE TO E-MAIL MARKETING. By engaging in e-mail marketing, you acknowledge that you are familiar and compliant with all such statutes, rules and regulations.
Regarding any Suppression List generated in connection with, or provided through the Publisher Program, Publisher will: (i) use such Suppression List, and the individual customer records contained, solely for the suppression purposes set forth herein, even after any termination of this Agreement; (ii) regularly use such Suppression List to remove any and all e-mail addresses or domains contained therein from future commercial e-mail mailings; (iii) not use the Suppression List for e-mail marketing (or provide the Suppression List to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address or domain appearing on any Suppression List; (iv) not use any Suppression List for e-mail appending in any manner; (v) hold any Suppression List provided by IR or any Advertiser in trust and confidence and use same solely for the suppression purposes set forth; (vi) not retain a copy of any Suppression List provided by IR or any Advertiser following termination of this Agreement; and (vii) not disclose any Suppression List provided by IR or any Advertiser to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by this Agreement. Such agreement shall be immediately forwarded to IR, upon request. IR reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar disclosing any and all Suppression Lists provided by IR or any Advertiser.
If Publisher engages in e-mail marketing, Publisher will provide IR its own list of suppressed e-mail addresses on a weekly basis. Publisher further agrees and acknowledges that: (a) it has downloaded and removed the domains on the Federal Communications Commission’s wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in its mailings; and (b) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any e-mail marketing messages. Publisher will maintain electronic or tangible records evidencing the removal of any email addresses from Publisher’s lists for verification by IR as required or requested.
Publisher shall comply fully with the Telephone Consumer Protection Act as amended and updated (“TCPA”) for all marketing activity that might result in telemarketing calls, text messages, SMS messages or other activities governed by the TCPA.
UNDERSTANDING THE TCPA AND COMPLYING WITH THE TCPA IS YOUR RESPONSIBILITY.
In addition to any other requirements of the TCPA or any implementing regulations, Publisher shall obtain prior express written consent from consumers that the consumer will accept telemarketing calls and SMS marketing messages from IR and its Advertisers or other entities as specified by IR. Consent cannot be a condition of a purchase. Without limiting the foregoing, if Publisher uses its own websites or forms to generate leads or to encourage a purchase or other consumer activity, Publisher immediately must product, on demand: (i) proof that a clear and conspicuous disclosure was provided to the consumer allowing for telemarketing calls and/or SMS messages as required herein; (ii) that the consumer unambiguously consented to receive such to the number the consumer provided; (iii) a copy of the website page or form that contains the consent language, and the fields entered by the consumer (this can be blank); (iv) a screenshot of the consumer's view that shows the any fields completed (this cannot be blank); (v) the date and time stamp related to the consent given; and (vi) the consumer's IP address.
DISCLAIMERS AND WAIVERS:
DISCLAIMERS/LIMITATION OF LIABILITY: THE PUBLISHER PROGRAM, IR WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT PROVIDED BY IR ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING WITHOUT LIMITATION THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PUBLISHER PROGRAM, IR WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT PROVIDED BY IR MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. IR HAS NO LIABILITY WHATSOEVER TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE PUBLISHER PROGRAM, THE IR WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND/OR CONTENT. IR IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR COSTS OF LITIGATION), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN IR AND PUBLISHER. THE PUBLISHER PROGRAM, IR WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT PROVIDED BY IR WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS.
IR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE PUBLISHER PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM IR THROUGH THE PUBLISHER PROGRAM, IR WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES OR CONTENT SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY OR THROUGH THE PUBLISHER PROGRAM, IR WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT IS EXPRESSLY DISCLAIMED. PUBLISHER UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE PUBLISHER PROGRAM AND ACCESS OR USE OF THE IR WEBSITE AND ITS CONTENT IS DONE SOLELY AT PUBLISHER’S OWN DISCRETION AND AT PUBLISHER’S OWN RISK. PUBLISHER IS SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE PUBLISHER PROGRAM, IR WEBSITE, DATA, SUPPRESSION LISTS, TRANSACTION TRACKING CODES AND CONTENT THAT MAY INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL IR BE LIABLE TO PUBLISHER OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH PUBLISHER’S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM PUBLISHER’S PARTICIPATION IN THE PUBLISHER PROGRAM. WITHOUT LIMITING THE FOREGOING, IR’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE MONEY PAID BY IR TO PUBLISHER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the IR Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by IR or any Advertiser are protected under applicable copyright, trademark and other proprietary or intellectual property laws. The usage, copying, redistribution or publication by Publisher of any part of the IR Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by IR or any Advertiser, other than as contemplated in this Agreement, are strictly prohibited. Publisher acquires no ownership rights to the IR Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by IR or any Advertiser. The availability of the IR Website, Publisher Program, Content, Data, Transaction Tracking Codes and Suppression Lists provided by IR or any Advertiser does not constitute a waiver of any rights related thereto.
PUBLICITY / CONFIDENTIALITY / NON DISCLOSURE:
Publisher agrees that IR may use, in perpetuity and without prior approval, Publisher’s name, company name and/or likeness, the Publisher Website addresses and any associated information, in IR’s marketing materials and press releases without compensation to Publisher. Publisher shall not create, publish, distribute or permit any written material that refers to IR without first submitting such material to IR and receiving IR’s prior written consent, which IR may withhold in its sole discretion. For this Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), and information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (i) a party’s business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, processes, methodologies, trade secrets, customer and vendor lists, personally identifiable customer information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (ii) the material terms of this Agreement and any associated Advertisers or Advertising Campaigns; and (iii) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement, or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (a) who must know such information for the Receiving Party to perform its obligations hereunder; and (b) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof: (1) is generally available to or known to the public through no wrongful act of the Receiving Party; (2) was independently developed by the Receiving Party without the use of Confidential Information; or (3) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The information and services provided through the Publisher Program and the Content are proprietary in nature and, by enrolling, Publisher acknowledges Publisher is not a competitor of IR and agrees not to share this information with any competitors of IR. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond. This Section shall survive any termination of this Agreement for a period of five (5) years, or for as long as that Confidential Information remains a trade secret under Wyoming State law, whichever period is longer.
Publisher recognizes that IR has proprietary relationships with the publishers, Advertisers and other third-parties that participate in the Publisher Program (collectively, “IR Partners”). Publisher agrees not to circumvent IR’s relationship with its IR Partners, or otherwise offer, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by publishers in the Publisher Program for any IR Partner during the term of this Agreement and for the one (1) year period following termination or expiration of this Agreement. Notwithstanding the foregoing, if Publisher can show that any such IR Partner already obtained such services from Publisher prior to the effective date of this Agreement, then Publisher shall not be prohibited from continuing such relationship.
Publisher agrees to indemnify, defend and hold harmless IR, its parents, publishers and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (i) Publisher’s, or a Sub-Publisher’s, breach of this Agreement including without limitation any representation or warranty contained herein; (ii) the Publisher Websites, Publisher Database, and/or Publisher’s or any Sub-Publisher’s marketing practices; (iii) any third party allegation or claim against IR relating to a violation of any applicable statute, rule or regulation; (iv) any allegation that Publisher or a Sub-Publisher has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (v) any non-Advertising Campaign related content, goods or services offered, sold or otherwise provided by Publisher on and through the Publisher Websites, Publisher Database or otherwise; (vi) any claim that IR must pay any taxes in connection with Publisher’s participation in the Publisher Program; or (viii) Publisher’s or any Sub-Publisher’s participation in the Publisher Program, in any manner whatsoever. You will promptly assume such defense with counsel reasonably acceptable to IR upon written notice to you of such indemnifiable claim. IR reserves the right to participate in the defense at its sole expense. You agree you will settle no indemnifiable claim without prior written approval of IR.
Publisher shall immediately notify IR in writing if Publisher receives notice of any complaints, inquiries or investigations related to the Publisher Websites, Publisher Database, any Sub-Publishers or any other violations for Publisher’s or any Sub-Publisher’s business whether or not Publisher must indemnify IR for such claim.
Publisher agrees that IR will not be liable or considered in breach of this Agreement for IR’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions beyond IR’s reasonable control and that IR cannot overcome through exercising commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, IR will give Publisher notice and will use commercially reasonable efforts to minimize the impact of any such event.
DISPUTE RESOLUTION PROVISIONS:
This Agreement shall be treated as though it were executed and performed in Wyoming and shall be governed by and construed under the laws of Wyoming (without regard to conflict of law principles). Any dispute arising out of or relating to this Agreement shall be resolved in a binding arbitration under the auspices of the American Arbitration Association in Wyoming under the then current Commercial Arbitration Rules of the American Arbitration Association. Besides all other rights and remedies a party may have, the prevailing party in any arbitration or legal action shall be entitled to an award of its reasonable attorneys' fees and costs. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. This binding arbitration provision shall not, however, prevent either party from seeking equitable or injunctive relief in a court of competent jurisdiction. Publisher agrees that any unauthorized and/or unlawful use of the Publisher Program would cause irreparable injury to IR for which monetary damages would be inadequate. In such event, IR shall have the right, besides other remedies available to it under this Agreement, to immediate injunctive relief against Publisher without the need to post a bond. Nothing in this Agreement shall be construed to limit any legal remedies available to IR. To the extent permitted by law, you agree you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy you may have against IR and its employees, officers, directors, members, representatives and/or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that IR incurs in seeking such relief. This preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of your rights and remedies to pursue a claim individually and (ii) is an independent agreement.
CLASS ACTION WAIVER:
ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR IR WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS. FURTHERMORE, YOU AGREE THAT YOU WILL NOT SEEK TO HAVE ANY DISPUTE AGAINST ANY LENDER TO WHOM YOU ARE REFERRED HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY.
If any Section or provision of this Agreement, or the application of such Section or provision, is held invalid by any court of competent jurisdiction, applicable statute or rule of law, then such Section or provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a Section or provision of this Agreement as though originally included herein. If the Section or provision invalidated is of such a nature it cannot be so adjusted, the Section or provision shall be deemed deleted from this Agreement as though such Section or provision had never been included herein. In either case, the remaining Sections and provisions of this Agreement shall be interpreted to reasonably affect the original intent of IR and Publisher. Section headings are included for convenience only and shall not affect the interpretation of this Agreement.
IR and Publisher are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. IR’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Any attempt by any individual, whether or not an Publisher, to damage, destroy, tamper with, vandalize or otherwise interfere with the operation of the Publisher Program, violates both criminal and civil law and IR may diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and IR’s successors and assigns. Publisher may transfer no rights and obligations under this Agreement. Any attempt to do so shall be deemed invalid and shall give IR the right immediate to terminate this Agreement.
Publisher agrees that by clicking on the button labeled “Submit” (or such similar button as may be designated by IR to accept this Agreement), 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 this Agreement. Under any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (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 SOFTWARE OR SERVICES OFFERED BY IR. Further, Publisher waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or granting credits by other than electronic means.
For technical/general questions, please contact: email@example.com
EXHIBIT A: QUALITY CONTROL GUIDELINES
IR LLC (IR) is serious about maintaining the highest quality leads, clicks and calls (“Actions”) in the industry. Therefore, IR will only pay a fee for Actions that comply with applicable international, federal, state or local laws, these Quality Control Guidelines, and that are not generated by fraudulent practices.
A valid Action is a lead, click or call that contains accurate and complete information (i.e., all necessary fields have been completed by the consumer), is from a real person (consumers) who express a genuine interest in the offer, and is compliant with these Quality Control Guidelines. IR will only pay for valid Actions. The following Quality Control Guidelines must be met to generate a valid Action:
- Actions must not come from computer-generated sources such as robots, spiders, computer scripts or from other automated, artificial or fraudulent methods, including without limitation any methods designed to appear like an individual, real live person.
- Actions must not be processed or entered by anyone other than the consumer named. Call center operations may be exempt from this requirement with IR’s prior consent and written approval.
- Actions must not contain false, incomplete or inaccurate information.
- Actions must not be from persons never interested in receiving information in the offer, or from persons misled into submitting their information.
- Actions must not be duplicate leads, defined as the same contact information (same or similar name with the same phone number or email address) sent to IR in the last 30 days.
- ACTIONS MUST NOT BE INCENTIVIZED (INCLUDING WITHOUT LIMITATION LEADS GENERATED BY OFFERING INCENTIVES, PAYMENTS, REBATES OR OTHER THINGS OF VALUE INTENDED TO INCREASE CONVERSION RATES).
- Actions must not be obtained using misleading or confusing language encouraging persons to submit their contact information.
- Actions must not be generated with any websites or offers that are oriented toward, show or promote pornographic or sexually explicit content, gambling, racist or hate speech or other offensive material as determined solely by IR.
- Actions sent to IR must not be sold to other lead buyers, lead aggregators, vendors, wholesale or retailer buyers (i.e., only EXCLUSIVE leads are acceptable). This requirement may be waived only with IR’s prior written consent.
- Actions must not be misclassified.
- The consumer completing the request form, clicking or making a call must be 18 years of age or older.
- Actions obtained through Craigslist or other similar online classified ad websites must not be misleading, including without limitation any strategies that redirect persons to landing pages for purposes not clearly referenced or explained in the original ad.
- Actions must not be generated through advertisements that are misleading, untrue and/or infringing on any trademark, copyright or other third party intellectual property rights.
- Actions must be delivered to IR in real-time.
- Actions must not be obtained using any other fraudulent or illegal practices.