TERMS & CONDITIONS FOR ADVERTISERS
The following Terms and Conditions (the "T's and C's"), together with the insertion order (the "IO"), shall govern all advertising campaigns ("Campaigns") that are conducted by Xoptin, LLC (hereunder "Xoptin"), for the entity identified on page one (1) of the IO and the signature page ("Company"). These T's and C's will govern any and all other IOs subsequently executed by Xoptin. These T's and C's supersede and replace any and all prior agreements entered into by and between Xoptin and Company pertaining to the subject matter hereof and shall control all extant IOs. Terms not defined in these T's and C's shall have the meanings set forth in the IO. All subsequently executed Insertion Orders and these T's and C's may be collectively referred to herein as the "Agreement"). This Agreement represents the entire agreement of the parties and may not be modified unless expressly agreed to in writing by both parties.
1. ADVERTISING SERVICES
Xoptin will provide advertising services (collectively the "Services"), upon the terms and subject to the conditions that Xoptin may designate from time to time in an IO. All such Services shall be subject to these T's and C's. Xoptin shall perform the Services as described herein and/or may use a Network to perform such Services (the "Network"). The Network may consist only of the affiliated publishers (collectively the "Publishers") that maintain their own proprietary websites, internet traffic and/or legal email databases derived from ordinary course activities as a publisher (i.e. no rented or shared databases).
2. COMPANYS CREATIVE & WEBSITE
2.1. Creative. Company will provide Xoptin with the creative materials for the Ads and/or Campaigns, including product/service descriptions, graphic images, logos, and copy (the "Copy"), at least five (5) days prior to Xoptin's posting of such Ads and/or Campaigns.
2.1.1. To the extent the Campaign involves E-Mails, the Copy shall also include subject and from lines, offer description (in text and html formats), a functional unsubscribe link, terms and conditions (if applicable), and any other information necessary to comply with all applicable state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003 (the "Act"). Company will submit changes or cancellations of any creative materials in writing to Company at least ten (10) business days in advance of requested change date.
2.2. License. Company grants Xoptin and its Publishers a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Company's name, logos, trademarks, trade names, service marks, URLs and slogans to display, market, promote and publicize Ads on the Service, and on Clickso's web sites, and for the purpose of including Company in Clickso's marketing and promotional materials. Company further grants to Xoptin and its Publishers a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights, owned or controlled by Company (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Service in accordance with this Agreement. Such License shall terminate immediately upon termination, for any reason, of all IOs then in effect.
2.3. Company Web site. Company shall make best efforts to keep the Company's web site generally available 24 hours a day, 7 days a week, to ensure that a third party user's purchase, registration, lead and any other action related to the Ad and/or Campaign ("User Action") may be processed on a timely basis. Company must notify Xoptin at least one (1) week in advance for any scheduled downtime so that Xoptin has adequate time to notify Publishers who are actively engaged in running the applicable Ads and/or Campaigns.
2.4. CPA Tracking. With respect to all cost per acquisition ("CPA") and cost per lead ("CPL") campaigns, Company will provide Xoptin with unique tracking links (URLs) that will record the origin of each user action including impressions, clicks and sales by unique tracking link. Company will allow Xoptin online access to the statistics regarding such User Actions by unique tracking link. Company will ensure Xoptin's tracking methods are in place and functioning at all times. Company will provide access to records as they become available that will allow Xoptin to monitor the volume of User Actions it has generated.
2.5. CPM and CPC Tracking. With respect to all other Campaigns, including cost per impression ("CPM"), cost per click ("CPC") and co-registration campaigns, Xoptin shall be solely responsible for calculating the user actions that comply with the terms of the applicable IO.
2.6. Suppression Lists. To the extent that Company receives, via E-Mail, website or other media, a message from a third party user that such user wishes to unsubscribe or opt out of receiving any Ads and/or Campaigns, Company is required to provide Xoptin with a suppression list of such opt-outs and unsubscribes ("Suppression List") no more than forty-eight (48) hours after receiving such transmission from third party user. Xoptin shall make the Suppression List available to the Publishers in its network.
3.1. Payment Obligations. Company is obligated to pay Xoptin in accordance with the pricing specified in each I/O. If not specified otherwise, payment shall be prepaid before the start of the campaign and during the term of the campaign. Xoptin may invoice Company, but payment by Company is not contingent upon receiving Xoptin's invoice. In the event Company fails to pay within five (5) days after payment is due, all outstanding charges shall bear interest at the rate of one and a half percent (1.5%) per month or the maximum interest rate permitted under applicable law, whichever is less. Company agrees that if Company does not pay within five (5) days after payment is due either Xoptin or its affiliates may seek to satisfy Company's payment obligations and to collect such payment. Company further agrees to pay all costs of collection (including court cost and reasonable attorneys fees) incurred by Xoptin and/or its affiliates in connection with its enforcement of any Order. Unless Company objects to Xoptin's invoice within forty-eight (48) hours, the amount invoiced shall be final and binding. Company may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Company intends to dispute an invoice, Company shall provide a written report to Xoptin, within two (2) business days identifying, in detail, the discrepancies, between the invoiced amount and Company's evidence. Xoptin may consider such report, but shall have final authority in determining the correct amount.
3.2. Payment Records. Company shall insert tracking pixel on the confirmation page for each Ad to be delivered hereunder. Company will provide Xoptin with a link to the confirmation page where Xoptin can view the pixel for approval prior to initiating the advertising campaign. Payment will be made based on Xoptin's calculations of the higher of number of leads from the Xoptin or Company statistics based on the tracking pixel. All such records provided by Company shall be the sole property of Company. In the event that the tracking methods employed malfunction or the Company web site is inoperable, for the period in question, a mutually agreed upon payment will be determined.
3.3. To the extent that payments are based on User Action, Xoptin may, in its sole discretion and if requested by the Company, transfer user action data that provides the basis for an invoice to Company.
3.4. Non-Viable Leads. Unless otherwise provided in the IO or Campaign Worksheet, no offsets or chargebacks may be taken for any non-viable or duplicate leads. Xoptin shall determine in its sole discretion what constitutes a non-viable lead. Without limiting the breadth of the foregoing, non-viable leads shall include, but not be limited to, leads with incomplete contact information (no e-mail address, no phone number, no physical address), leads from non-United States citizens, leads from consumers under 18 years of age, etc. It is the responsibility of the Company to insure that the IO or Campaign Worksheet accurately reflects the leads sought.
Unless terminated earlier in accordance with Sections 8 or 13 below, the term during which Xoptin shall provide the Services shall be as set forth in the IO.
5. REPRESENTATION & WARRANTIES
5.1. Company warrants and represents at all times that (a) Company has all necessary rights and authority to enter into this Agreement and to grant Company the licenses granted herein, (b) the execution of this Agreement by Company, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Company is a party or by which it is otherwise bound, (c) the Suppression List Company provides is accurate and complete; (d) the links contained in any Ads and/or Campaigns are directed to the intended and agreed upon destination and are not re-directed; and (e) the Advertisements, the use and display thereof, and the content linked to from such Advertisements will not: (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (ii) be misrepresentative, libelous, defamatory, obscene, or otherwise inappropriate, (iii) violate any applicable law or regulation, or (iv) advertise any unlawful product or service or the unlawful sale of any product or service. In the event this Agreement includes E-mail distribution, Company further represents and warrants that it will comply with all aspects of the Act. Further, to the extent that Company has requested that Company create and develop certain Ads, Company acknowledges that been given the opportunity to reject such Ads, and has approved the Ads and accepted all liability connected to such Ads.
5.2. With respect to a Campaign involving E-mails, Company further represents and warrants, that Company has the power and authority to bind itself and any Agency to these representations and warranties; that Company will comply with all aspects of all state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003; and Company will not submit a Campaign for transmission of any E-mail: (a) with a "from line" that is materially false or misleading and does not accurately identify the person sending the E-mail; (b) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the E-mail; (c) that does not include a clear and conspicuous identification that the E-mail is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the Company and Publisher; or (d) with any content that (i) infringes or violates any intellectual, proprietary or privacy rights; or (ii) is misrepresentative, defamatory or violates any applicable law or regulation. Company also represents and warrants that it will not transmit a Campaign including an E-mail to any individual that has requested not to receive any E-mails more than five (5) days after receipt of such request, provided that the E-mail falls within the scope of the request.
6. OTHER SERVICES
Xoptin may, in its sole discretion, offer at no additional charge, and Company may accept at its discretion, Clickso's assistance in the conception and development of creative materials to be used in connection with any IO, including, without limitation design, art and/or copy ("Clickso Produced Materials"). Xoptin reserves the right to include text around the creative materials if necessary to clarify terms within the creative materials in order to comply with best industry practices and avoid potential claims of false advertising. Company grants to Xoptin and Publishers a non-exclusive, revocable license solely to use and distribute the Xoptin Produced Materials in the manner set forth in this Agreement. Neither Xoptin nor its Publishers shall use Company Produced Materials for any other purpose. Xoptin warrants that it has all necessary intellectual property rights and/or licenses to utilize, provide, and create all copy and images used to create Xoptin Produced Materials.
7. DISCLAIMER OF WARRANTIES
EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Xoptin shall not be liable for any Ad, Campaign or E-Mail, including but not limited to the content thereof, any unavailability or inoperability of the Internet, unavailability or consequences of any Ad or Campaign, the Company Site, or Services, or any technical malfunction, computer error, corruption or loss of information related to or arising out of the Services, the Company Site or any Ad or Campaign. the information and content on Xoptin site and via the service is provided on an "as is" basis with no warranty.
Each party represents and warrants that it shall provide notice for, and fully disclose, its privacy policies and practices to visitors to its web site(s), including its policies and practices with respect to the collection of information on persons who may visit its website(s). Both parties reserve the right to terminate this Agreement immediately, at any time after the start of the Campaign by providing not less than forty-eight (48) hours prior written notice to the other party, upon inspection of the other party's privacy statement and the party's reasonable determination that said privacy statement does not adequately disclose the party's information use and collection practices.
9. LIMITATION OF LIABILITY
Except for each party's obligations of Confidentiality and Indemnification, in no event shall either party's liability exceed the total amount paid to Xoptin by COMPANY in the six months preceding the event giving rise to the claim. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE In no event shall either party be responsible for any indirect, incidental, consequential, special, lost profits, or exemplary damages arising from any aspect of the advertising relationship provided herein WHETHER OR NOT FORESEEABLE and whether or not the other party has been advised of the possibility of such damages.
10.1 Except as otherwise provided herein, both parties acknowledge and agree that all information, data, materials, or technology communicated to the other party and marked as "Confidential" or "Proprietary" or reasonably considered confidential under the circumstances of its disclosure hereunder, ("Confidential Information"), was and shall be received in confidence, shall be used only for purposes of this Agreement, and that no such Confidential Information shall be disclosed by the receiving party without the prior written consent of the disclosing party, except as may be necessary by reason of legal, accounting or regulatory requirements. For avoidance of doubt, all email addresses and any other personally identifiable information disclosed by Company to Xoptin and vice versa hereunder shall be considered Confidential Information.
10.2 Except to the extent otherwise required by applicable law, the parties' obligations under this section do not apply to information that: (a) is or becomes publicly known, through no fault of the receiving party; (b) the receiving party can demonstrate was known by the receiving party prior to disclosure hereunder; (c) the receiving party can demonstrate is disclosed to the receiving party by a third-party with no violation of confidentiality to the disclosing party; (d) the receiving party can demonstrate is developed by the receiving party independent of any use of information disclosed by the disclosing party; or (e) if required by court order, law or governmental agency. In the event that the receiving party is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the Confidential Information, the receiving party will notify the disclosing party promptly so that the disclosing party may seek a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, the receiving party will furnish only that portion of the Confidential Information which as advised by counsel, is legally required, and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
11.1 Company agrees to indemnify, defend and hold harmless Xoptin, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, liabilities, suits, proceedings, settlements, expenses, liens, injury or damage (including reasonable attorneys' fees and expert's fees and costs) resulting from but not limited to claims of tort, false advertising, intellectual property infringement, or actions that may at any time be incurred, arising out of or in connection with the Ads or Company's breach of this Agreement.
11.2 Xoptin agrees to indemnify, defend and hold harmless Company, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, liabilities, suits, proceedings, settlements, expenses, liens, injury or damage (including reasonable attorneys' fees and expert's fees and costs) resulting from claims or actions that may at any time be incurred, arising out of or in connection with the Xoptin's breach of this Agreement.
11.3 Indemnity Procedures. if any action will be brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from \the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
11.4 Notwithstanding the foregoing, if any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section
11.5 Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.
12. NOTIFICATION OF LEGAL ACTION BY A THIRD PARTY
Notification of Legal Action. Company will immediately notify Xoptin of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
Unless expressly stated otherwise on the IO, either party may terminate any IO at any time for convenience, without or without reason or cause upon forty-eight (48) hours prior written notice to the other party for any or all Campaigns. Termination for convenience shall be without waiver, penalty, cost or obligation of either party except that such termination shall not relieve Company of the obligations to pay any amounts due and owing to Xoptin through the effective date of the termination. Xoptin shall, if necessary, immediately require its Publishers to fully terminate their activities under the Campaign. No fees shall accrue or be incurred after the effective date of termination.
14. PROPRIETARY RIGHTS
Company agrees that it does not have, nor will it claim any right, title or interest in the Service, Clickso's Site or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided on Clickso's Site (including the Ads). Company will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective Xoptin site tags, source codes, links, pixels, modules or other data provided by or obtained from Xoptin that allows Xoptin to measure ad performance and provide its service. In addition, Company acknowledges that all information, data and reports received from Xoptin as part of the Services are proprietary to and owned by Xoptin. If instructed to do so by Xoptin, Company will immediately destroy and discontinue the use of any such reports or data, and any other material owned by Xoptin or the third party Advertisers.
15. NON-SOLICITATION WITH PUBLISHERS
Company will not knowingly (which is defined as "Company having actual and specific knowledge", and Xoptin acknowledges that Company makes no effort when entering into a relationship with a Publisher to determine if they are or were a Xoptin Publisher) participate in any performance based advertising relationship with any Xoptin Publisher, unless a previously existing business relationship between Company and Publisher can be demonstrated to the reasonable satisfaction of Xoptin. In this connection, both Parties agree and acknowledge that if Company violates its obligations hereunder, Xoptin will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by Company through the advertising or marketing efforts of Publisher during the term of this Agreement, and for gross revenues in the three (3) months proceeding the date such violation was discovered by Xoptin and the three (3) months after termination of this Agreement.
This Agreement, together with the IO and any other exhibits or attachments hereto, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties whether written or oral. Xoptin may assign this Agreement to a subsidiary or business successor. Company may not assign this Agreement without the prior written consent of Xoptin, which shall not be unreasonably withheld. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed e-mail, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth above, or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective upon receipt. Xoptin shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the rest of the Agreement shall be enforceable in accordance with its terms. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. The parties agree that the relationship between Xoptin and Company shall not constitute a partnership, joint venture or agency.
16.1. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.
16.2. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Illinois without respect to choice of law rules and the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Cook County, Illinois for such purpose.
16.3. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.