Mobile Focused Media dba Intelsio Terms & Conditions
AGREEMENT (this 'Agreement') by and between Mobile Focused Media dba Intelsio, a corporation (known as ADVERTISER), having offices at,1218 E De La Guerra St Santa Barbara, CA 93103 and Affiliate (known as AFFILIATE), as indicated in the insertion order above. These Terms & Conditions are provided at time of Insertion Order. WHEREAS, ADVERTISER wishes to engage AFFILIATE to perform the Sales and Marketing Services via Insertion Order, and ADVERTISER wishes to accept such engagement, upon the stated terms and subject to the conditions contained herein.
NOW, THEREFORE , in consideration of the premises and mutual covenants and conditions contained herein, the parties, intending to be legally bound, agree as follows:
These terms and conditions ('Standard Terms') shall be deemed incorporated by reference into any insertion order (the 'Insertion Order') submitted by the ADVERTISER or its agency set forth in the Insertion Order (collectively, 'ADVERTISER'), and shall govern the Insertion Order, superseding all terms therein except for those relating to advertisement scheduling and pricing. All orders must be submitted with an Advertiser Insertion Order Form, signed off on by ADVERTISER, and are subject to acceptance by ADVERTISER. The Standard Terms and Insertion Order shall be collectively known as the 'Agreement'. ADVERTISER and its agency (if applicable) shall be jointly and severally responsible under this Agreement.
1. Term of Agreement. The term of this Agreement commences and terminates as set forth in the Flight Dates in the Insertion Order, or such later date as the parties may agree to in writing.
2. Terms of Payment. AFFILIATE will invoice ADVERTISER as set forth in the Insertion Order and as provided by ADVERTISER's reporting and tracking system. Payment as set forth in the Insertion Order shall be made to AFFILIATE 30 days from the end of each calendar month in which a transaction has occurred, unless specified otherwise in the Insertion Order. All payments due here under are in US dollars and are exclusive of any applicable taxes.
2.1 Rejected Leads/Fraudulent Activity. If returns are allowed as indicated in the insertion order, Advertiser will report any and all rejected leads (including, but not limited to, leads that are allegedly fraudulent, invalid, incomplete, duplicative, generated from an unapproved traffic source, or not seeking services specifically related towards tax debt relief) to Affiliate within 5 business days after the end of the month which the leads were generated, along with the reason(s) and commercially reasonable data supporting the reason(s) for the rejection(s). Any leads not disputed within this timeframe and with the requisite support will be deemed valid and payable and may not thereafter be disputed and payment may not be withheld for any reason.
2.2 Shortfalls. In the event there is a shortfall in leads as of the stop date, Affiliate may provide Advertiser’s remedy, either in the form of “billing credit” or “make good”.
3. ADVERTISER's Advertisement Representations; Indemnification. ADVERTISER represents and warrants to AFFILIATE that ADVERTISER holds all necessary rights to permit the use of the advertisement by AFFILIATE for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of advertisement, any data regarding users, and any material to which users can link, or any products or services made available to users, through or as a result of the advertisement will not (a) violate any criminal, (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or code, or (c) use any trademark, trade name, or corporate name of AFFILIATE without the prior written consent of AFFILIATE. ADVERTISER agrees to indemnify, defend and hold AFFILIATE and Third Parties (if any, and including, but not limited to AFFILIATE data and, or technology Partners,) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach of any of the foregoing representations and warranties, or (ii) any third party claim arising from use of or
access to the advertisement under this Agreement or any material to which users can link, or any products or services made available to users, through the advertisement under this Agreement.
AFFILIATE agrees to indemnify, defend and hold harmless ADVERTISER, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys' fees) asserted by any third party due to, arising from, or in connection with: any breach by AFFILIATE of this Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed by AFFILIATE; and/or any intellectual property claims associated with any and all copy and images supplied by ADVERTISER and AFFILIATE’S usage thereof.
4. Right to Reject Advertisement; Positioning. All contents of advertisements are subject to both ADVERTISER’s and AFFILIATE's approval. Both parties reserve the right to reject or cancel any advertisement, Insertion Order, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by either party that any placement thereof may subject them to criminal or civil liability).
5. Regulatory Compliance. Each party represents and warrants that it shall comply with all applicable local, state, and federal laws and regulations when performing its duties under this Agreement. Each party will use commercially reasonable efforts to maintain the security of its websites, databases, servers, and all lead information. Any leads, contacts, or data AFFILIATE provides to ADVERTISER shall be obtained, collected, and compiled using methods that fully comply with all applicable laws, rules, and regulations, including without limitation: (i) the Telephone Consumer Protection Act; (ii) the Telemarketing Sales Rule; (iii) the CAN-SPAM act; (iv) the Delaware Consumer Privacy Act, et seq. , and all amendments thereto; and (v) all laws governing deceptive trade practices and/or online marketing and advertising. If requested by ADVERTISER, AFFILIATE must provide in writing, in advance of its commercial use, all advertising and/or messaging that AFFILIATE uses pursuant to this agreement. AFFILIATE agrees to indemnify, defend and hold harmless ADVERTISER, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys' fees) asserted by any third party due to, arising from, or in connection with: any breach by AFFILIATE of this Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed by AFFILIATE; and/or any intellectual property claims associated with any and all copy and images supplied by AFFILIATE and AFFILIATE’S usage thereof.
5.1 Telemarketing & Warm Transfer - Any data AFFILIATE provides to ADVERTISER for telemarketing purposes or that is provided to ADVERTISER via warm-transfer shall consist of records of persons or calls from persons who (i) have made an inquiry (as that term is used in the Telemarketing Sales Rule and applicable state law, sufficient to satisfy the requirements of an “Established Business Relationship” as defined in the Telemarketing Sales Rule and applicable state law) regarding ADVERTISER’s advertised services, and (ii) have consented to have their information transmitted to and shared with ADVERTISER, and (Iii) have not subsequently requested to be added to AFFILIATE’s internal do-not-call list pursuant to the National Do Not Call Registry., and (iv) have not subsequently withdrawn their consent to be contacted by AFFILIATE or ADVERTISER. ADVERTISER agrees to maintain a regularly updated Do Not Call list containing current unsubscribe requests in conformance with the Telephone Consumer Protection Act, the Delaware Consumer Privacy Act, and all related governing law. Further, ADVERTISER specifically agrees to provide AFFILIATE with updated Do Not Call lists upon request.
5.2 Email – If AFFILIATE utilizes or relies on email communications with the potential customers contemplated by this Agreement, all AFFILIATE email messages shall comply with the CAN-SPAM Act and other applicable laws, rules, and regulations, and shall only be delivered to persons who have given their consent to receive the third party commercial email advertising messages in question and have not subsequently sent an unsubscribe request revoking this consent. ADVERTISER agrees to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with the CAN-SPAM Act of 2003. AFFILIATE agrees to NOT perform an email-marketing program without downloading the suppression provide via Optizmo.
5.3 Natural Search – AFFILIATE is prohibited from link farming, page cloaking, or other deceptive practices to manipulate natural search rankings. In general, a search engine and an end user should see the same content on a website. All titles and descriptions used for search listings must be current, accurate, and not deceptive.
5.4 Paid Search – AFFILIATE is prohibited from bidding on protected keywords. AFFILIATE is further prohibited from utilizing paid search to link directly to the ADVERTISER’s website without the use of a landing page. The term “Protected Keywords” shall mean any and all branded keywords of, associated with, or substantially similar to, all trademark brand terms as outlined via email correspondences. Additional negative keyword lists may be altered at any time.
6. Confidentiality . During the term of this Agreement, and until such time as the "Confidential Information" (as defined below) is no longer protected as a trade secret under the laws of Delaware, neither party will use or disclose any 'Confidential Information' of the other party except as specifically contemplated herein. 'Confidential Information' means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, ‘Confidential Information’ shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the Insertion Order. ‘Confidential Information’ does not include information that: (i) has been independently developed by the receiving party without access to the other party's ‘Confidential Information’; (ii) has become publicly known through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party's ‘Confidential Information’ to the disclosing party.
7. Termination; Effect of Termination . In the event of a material breach by either party, either party may terminate this Agreement immediately without notice or cure period, without liability to the other. Either party also acknowledges and agrees that either party may, in their sole discretion, terminate this Agreement at any time in order to comply with regulatory requirements, even in the absence of a formal or informal demand by the relevant governmental authority. In the event of any termination, ADVERTISER shall remain liable for any amount due under an Insertion Order for advertisement delivered by AFFILIATE and such obligation to pay shall survive any termination of this Agreement.
8. No Warranty . AFFILIATE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ADVERTISER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ADVERTISER'S SERVICE.
9. Limitations of Liability . ADVERTISER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY AFFILIATE FROM ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE CLAIM. Without limiting the foregoing, AFFILIATE shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of ADVERTISER. ADVERTISER acknowledges that AFFILIATE has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
10. Audit Rights . ADVERTISER shall keep proper records and books of account relating to the computation of payments to be made hereunder. AFFILIATE or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with ADVERTISER's business activities and, except as provided below, shall be conducted no more frequently than once every six months. ADVERTISER shall immediately make any overdue payments disclosed by the audit.
11. Construction . No term or condition other than those set forth in the Standard Terms or in the Insertion Order relating to advertisement scheduling and pricing shall be binding on AFFILIATE unless in a writing signed by duly authorized representatives of the parties. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by ADVERTISER, including AFFILIATE's insertion order, and AFFILIATE hereby disclaims any terms therein, except for terms therein relating to advertisement scheduling and pricing.
12. Miscellaneous . This Agreement shall be governed by and construed in accordance with the laws of Delaware. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. ADVERTISER shall make no public announcement regarding the existence or content of the Insertion Order without AFFILIATE's prior written approval, which approval shall not be unreasonably withheld. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by facsimile or nationally-recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
Authorized Representative: Affiliate
Authorized Representative: Mobile Focused Media, INC dba Intelsio
Signature: ____________________________________
Signature: ____________________________________
Name: ______________________________________ Name: ______________________________________
Company: _____________________________________ Title: ______________________________________
Date: ______________________________________ Date: ______________________________________
