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 ValpaCore LLC
(hereunder "ValpaCore"), 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 ValpaCore. These T's and C's supersede and replace any and all
prior agreements entered into by and between ValpaCore 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.
ValpaCore will provide advertising services (collectively
the "Services"), upon the terms and subject to the conditions that ValpaCore may designate from time to time in an IO. All such
Services shall be subject to these T's and C's. ValpaCore
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. Company's Creative and Web Site
2.1. Creative. Company will provide ValpaCore 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 ValpaCore'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 ValpaCore 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 ValpaCore's web
sites, and for the purpose of including Company in ValpaCore's marketing and promotional materials. Company further grants to
ValpaCore 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 ValpaCore
at least one (1) week in advance for any scheduled downtime so that
ValpaCore 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 ValpaCore 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 ValpaCore online access to
the statistics regarding such User Actions by unique tracking link.
Company will ensure ValpaCore's tracking methods are in
place and functioning at all times. Company will provide access to
records as they become available that will allow ValpaCore
to monitor the volume of User Actions it has generated. In the event
that no online tracking is available for ValpaCore's use
then Company agrees to provide ValpaCore with statistics
regarding user actions generated by it each day by 10:00 AM EST/EDT.
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, ValpaCore 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 ValpaCore 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. ValpaCore shall make the Suppression List
available to the Publishers in its network.
2.6.1. ValpaCore is not liable for any result or consequence
arising out of (a) Company's failure to timely provide ValpaCore with a Suppression List; (b) any Suppression List provided by
Company that is in any way inaccurate or incomplete; (c) any Publisher's
failure to scrub its database against the Suppression List provided by
ValpaCore; and/or (d) any violations of Company's privacy
policy in ValpaCore's delivery of the Suppression List to
Publishers. ValpaCore's sole obligation hereunder is to make
the Suppression List available to the Publishers.
3. Payments.
3.1. Payment Obligations. Company is obligated to pay ValpaCore 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. ValpaCore may
invoice Company, but payment by Company is not contingent upon receiving
ValpaCore'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 ValpaCore 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 ValpaCore and/or its affiliates in connection with its enforcement
of any Order. Unless Company objects to ValpaCore'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 ValpaCore, within two (2) business days
identifying, in detail, the discrepancies, between the invoiced amount
and Company's evidence. ValpaCore 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 ValpaCore with a link to the confirmation page where
ValpaCore can view the pixel for approval prior to
initiating the advertising campaign. Payment will be made based on ValpaCore's calculations of the higher of number of leads from the
ValpaCore 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, ValpaCore 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. ValpaCore 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.
4. Term.
Unless terminated earlier in accordance with Sections 8 or 13 below, the
term during which ValpaCore shall provide the Services shall
be as set forth in the IO.
5. Representations and 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.
ValpaCore may, in its sole discretion, offer at no
additional charge, and Company may accept at its discretion, ValpaCore'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 ("ValpaCore
Produced Materials"). ValpaCore 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 ValpaCore and Publishers a non-exclusive,
revocable license solely to use and distribute the ValpaCore
Produced Materials in the manner set forth in this Agreement. Neither
ValpaCore nor its Publishers shall use Company Produced
Materials for any other purpose. ValpaCore warrants that it
has all necessary intellectual property rights and/or licenses to
utilize, provide, and create all copy and images used to create ValpaCore 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. ValpaCore 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 ValpaCore site and
via the service is provided on an "as is" basis with no warranty.
8. Privacy.
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 ValpaCore 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. Confidentiality.
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 ValpaCore 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. Indemnification.
11.1 Company agrees to indemnify, defend and hold harmless ValpaCore, 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 ValpaCore 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 ValpaCore'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, 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 ValpaCore 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.
13. Termination.
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 ValpaCore through the effective
date of the termination. ValpaCore 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, ValpaCore's Site or any
underlying technology, software, applications, data, methods of doing
business or any elements thereof, or any content provided on ValpaCore's Site (including the Ads). Company will not attempt in
any way to alter, modify, eliminate, conceal, or otherwise render
inoperable or ineffective ValpaCore site tags, source codes,
links, pixels, modules or other data provided by or obtained from ValpaCore that allows ValpaCore to measure ad
performance and provide its service. In addition, Company acknowledges
that all information, data and reports received from ValpaCore as part of the Services are proprietary to and owned by ValpaCore. If instructed to do so by ValpaCore,
Company will immediately destroy and discontinue the use of any such
reports or data, and any other material owned by ValpaCore
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 ValpaCore acknowledges that
Company makes no effort when entering into a relationship with a
Publisher to determine if they are or were a ValpaCore
Publisher) participate in any performance based advertising relationship
with any ValpaCore Publisher, unless a previously existing
business relationship between Company and Publisher can be demonstrated
to the reasonable satisfaction of ValpaCore. In this
connection, both Parties agree and acknowledge that if Company violates
its obligations hereunder, ValpaCore 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 ValpaCore and the three (3)
months after termination of this Agreement.
16. Miscellaneous.
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. ValpaCore may assign this
Agreement to a subsidiary or business successor. Company may not assign
this Agreement without the prior written consent of ValpaCore, 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. ValpaCore 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 ValpaCore 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 California without respect to choice
of law rules and the Parties hereby consent to exclusive jurisdiction
and venue in the state and federal courts in Los Angeles County, California 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.