ADVERTISER TERMS & CONDITIONS
These Terms and Conditions are incorporated by reference into the Insertion Order(s) (“IO”) entered into by and between CallCore Media, Inc., its subsidiaries and affiliates (collectively, the “Company”) and Advertiser and are effective as of the date set forth on the IO (the “Effective Date”). These Terms and Conditions and the IO(s) are referred to herein as the “Agreement.” If there is a conflict between these Terms and Conditions and the IO, the IO shall prevail.
Unless otherwise terminated as set forth below, the term of this Agreement commences on the Acceptance Date set forth in the IO and terminates on the End Date set forth in the IO or such later date as the parties may agree in writing.
2. ADVERTISEMENTS; RESTRICTIONS AND CONDITIONS.
(i)As used herein, Advertisements means, without limitation, the banners, buttons, clicks, co-registrations, emails, audio and video files, content, text, graphic files and similar media and or data described in the IO. (ii) The services and content produced by and performed by Company pursuant to the Agreement including discoveries, inventions, know-how, technology, plans, writings, drawings, graphics, concepts, finished and unfinished outlines, drafts, notes, printed materials, designs, models, processes, software, and all evidence and physical embodiments thereof (collectively referred to as the “Work Items) shall be the exclusive property of Company. Company shall have full and complete ownership rights to use, license and sell any and all of the Work Items in any manner determined by Company, in Company’s sole discretion, in the United States and any and all territories and foreign jurisdictions.
Advertiser agrees to pay Company for all advertising published by Company on a CPA, CPC, or CPM basis in accordance with the terms of the IO and the Campaign Specifications set forth in the IO. If not stated in the IO, the Company will submit invoices, stated in US Dollars, to Advertiser weekly on each Monday for amounts for the prior Monday through Saturday. Unless otherwise stated in the IO, Advertiser shall remit payment to Publisher on each invoice within seven (7) days of receiving the invoice by ACH payment or by other means expressly agreed to in writing by Company. Advertiser shall also be responsible for and shall pay any applicable sales, use and other taxes, duties or tariffs applicable to provision of the services rendered (except for taxes on Company’s income). Company’s failure to invoice Advertiser shall not constitute the waiver of any amounts due to COMPANY by Advertiser and/or Advertiser’s breach of this Agreement.
Unless Advertiser objects to Company’s invoice within two (2) business days following receipt of the invoice, the amount invoiced shall be final and binding. Advertiser may only dispute invoices for which it has a reasonable basis for such dispute evidenced in writing. If Advertiser disputes an invoice, Advertiser shall provide written notice to Company, within two (2) business days from receipt of the invoice, identifying the discrepancies and providing Advertiser’s evidence. Company may consider such report, but shall have final authority in determining the correct amount.
If Advertiser fails to pay any invoice within ten (10) days after payment is due, all outstanding charges, regardless of due date, 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. If Advertiser does not pay within ten (10) days after payment is due, Advertiser agrees Company may initiate action to collect such payment and Advertiser shall pay all costs of collection (including court cost and reasonable attorney’s fees) incurred by Company in connection with its collection efforts.
Company will provide reports and Advertiser agrees that Company will invoice Advertiser based on Company reporting, which shall be binding based on terms set forth under “Payment” in this Agreement. If Company permits Advertiser to host the Advertisement in a CPA campaign, Advertiser will allow Company to place a tracking pixel on the Advertisement and Company reporting generated from such tracking pixel will be binding on Advertiser. Company may allow use of Advertiser’s reporting only if agreed to expressly in writing and in addition to the terms and conditions of this Agreement.
5. ADVERTISER’S REPRESENTATIONS.
Advertiser represents and warrants to Company that: (a) it has the full corporate right, power and authority to enter into the Agreement, and holds all necessary rights and/or licenses to permit Company to use the advertisement for the purpose of this Agreement; (b) 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 by or through the advertisement will not (i) violate any civil or criminal laws or any rights of any third parties, (ii) contain any material that is unlawful, discriminatory 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 (iii) use any trademark, trade name, or corporate name of Company without the prior written consent of Company; (c) if Advertiser is acting on behalf of or as an agent of a third party, Advertiser agrees that it has the right to act on behalf of that third party and has the ability to bind that third party to the terms and conditions of this Agreement, including but not limited to the representations of this Section; and (d) the execution of the Agreement by and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Advertiser is a party or by which it is otherwise bound and which may affect the Company. Advertiser acknowledges that Company is relying on the representations made in this Section which are a material term of this Agreement and Company would not enter into the Agreement in the absence of these representations.
6. CONTENT CONTROL.
Advertiser will be solely responsible for creating, managing, reviewing, deleting and otherwise controlling the content. Advertiser acknowledges that, in providing Company with the ability to publish and distribute the content, Company is acting only as a passive conduit for the distribution and publishing of such content. Advertiser retains complete discretion over the content published and distributed by Advertiser. Company has no obligation to Advertiser, and undertakes no responsibility to review the content or user-generated content to determine whether such content may result in liability to third parties.
The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with the content. For the term of the Agreement, Advertiser grants to Company a limited, revocable, non-transferable, non-exclusive, royalty-free license to use the content as necessary to perform its services hereunder. In the event that Advertiser desires to cancel the use of any content (including any portion thereof), Company shall cease the distribution and/or use of same no more than twenty-four (24) hours following Advertiser’s written request.
7. RIGHT TO REJECT ADVERTISEMENT; POSITIONING.
All contents of advertisements are subject to Company approval. Company reserves the right to reject or cancel any advertisement, IO, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by Company that any placement thereof may subject Company to criminal or civil liability).
Company shall retain the records of each individual’s “prior express written consent” (“Consent Records”) for a minimum of seven (7) years following creation of same, and shall provide such Consent Records to Advertiser within five (5) business days of receipt of Advertiser’s request at any time during that seven (7) year period. During the term of this Agreement to Advertiser, or any designee of Advertiser that is legally bound to obligations of confidentiality and non-disclosure, may examine, inspect, audit, and review all such records, and any source documents used in the preparation thereof, during normal business hours upon written notice to Company at least five business days prior to such examination, inspection, review, or audit. Such audit shall be limited to those books and records specifically relating to information regarding the se provided under the IO.
(a) During the term of the Agreement, and until such time as the “Confidential Information” (as defined below) is no longer protectable under applicable law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” means information that: (i) 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 (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, the Confidential Information of Company shall include, without limitation, its technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, lists of actual or potential customers or suppliers and the terms of the IO.
(b) Each party may use Confidential Information received from the other party only in connection with and to further the purposes of the Agreement during the term of the Agreement and may only provide such Confidential Information to its respective directors, employees and legal advisors who have a “need to know” such Confidential Information and who are obligated to honor, confidentiality provisions at least as stringent as those set forth in the Agreement. The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under the Agreement.
(c) Section 9(a) shall not apply to information which belongs to the receiving party or is: (i) already known by the receiving party; (ii) publicly known or becomes publicly known through no unauthorized act of the receiving party; (iii) lawfully received from a third party without restriction on use or disclosure if, to the receiving party’s knowledge, such third party had the legal right to disclose such information; or (iv) independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information. In addition, a party may disclose Confidential Information hereunder if pre-approved in writing by the other party for disclosure, or if disclosure is required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement, in advance, where permitted.
(d) Upon completion or termination of the Agreement or the written request of the Disclosing Party at any time, the receiving party shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to the disclosing party or certify, if so requested, in writing that all copies of Confidential Information have been destroyed; except for material reasonably required to be maintained by counsel.
(e) The parties agree that during the term(s) of this Agreement and for a period of one year thereafter, they will not directly or indirectly solicit or attempt to solicit the employment of any of the other party’s employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section.
(f) During the term of this Agreement and for twelve (12) months hereafter, Advertiser shall not directly or indirectly solicit any on-line publisher, Web Site, or email provider that is affiliated with Company. In the event that Advertiser does so directly contract with such affiliate or in any other way violates this Agreement, then Advertiser shall pay Company an additional commission equal to what the Company would otherwise have earned had Advertiser not violated this section 9. Any agency executing this Agreement represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this Agreement.
(g) The parties agree and understand that a material breach of this Section 9 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement.
10. DISCLAIMER OF WARRANTIES.
COMPANY PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, COMPANY’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
11. LIMITATIONS OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION OR DATA, DISRUPTION OF BUSINESS DUE TO PANDEMIC OR ACT OF GOD, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND, LOSS OR USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF COMPANY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO ADVERTISER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED HEREUNDER. PURSUANT TO THE APPLICABLE IO. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, IN LIEU OF REFUND, COMPANY SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
In addition to any other remedies that may be available to it, Company may immediately terminate the Agreement in the event of any breach by Advertiser of the representations and warranties contained herein or nonperformance of any of its obligations hereunder. Either party may cancel any IO, for any reason, upon ten (10) business days’ prior written notice. In the event of termination without cause, Advertiser shall remain liable for payment due for Actions under the Agreement prior to the effective date of termination. Sections 3, 8 through 11 and 13 through 18, and any accrued but unpaid payment obligations, shall survive termination
Advertiser agrees to indemnify, defend and hold harmless Company, its subsidiaries, affiliates, agents, contractors, officers, directors and employees from and against any third-party claims, suits, actions, loss, cost, damage, liability including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought, or other expense resulting from the actual or alleged breach of any obligation, representation or warranty of under this Agreement, the content or advertisement provided by or on behalf of Advertise, or from the actual or alleged negligent or wrongful acts or omissions of Advertiser or its affiliates, including its or their, respective directors, officers, employees, or agents. The obligations under this Section are conditioned on (a) the Company giving the Advertiser prompt written notice of any claims, demand, or suit threatened or instituted against it and (b) the Company providing the Advertiser (at the Advertiser’s expense) with all information and assistance reasonably necessary to defend or settle such liability or claim; and (c) Company taking no action that may prejudice Advertiser’s ability to defend the claim.. Advertiser shall control of the defense and all related settlement negotiations. Advertiser shall permit the Company to monitor any defense or settlement conducted by Advertiser and Advertiser shall not settle any such claim without the Company’s prior written approval (not to be unreasonably withheld in light of the nature of the claim and the terms and conditions of the proposed settlement).
15. FORCE MAJEURE.
Neither party will be liable, or be considered to be in breach of the Agreement, on account of such party’s delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, pandemics, 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, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
16. COMPLIANCE WITH REGULATORY AND LEGAL AUTHORITY.
The parties hereby represent and warrant that they will at all times fully comply with all applicable statutes, rules and regulations with respect to their respective businesses including, without limitation, the CAN SPAM Act of 2003, as amended, laws governing deceptive trade practices and/or online marketing and/or advertising. Furthermore, the parties hereto expressly agree that the customer database generated under the Agreement shall be shared by the parties. Each of the parties shall be free to use this database as each sees fit, in its sole discretion, provided that such use complies with all applicable state and federal laws, rules and regulations, including, without limitation, the CAN-SPAM Act of 2003, as amended from time to time (“CAN-SPAM”). The parties hereby represent and warrant that they shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective businesses including, without limitation, CAN-SPAM, the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (“TCPA”), laws governing deceptive trade practices and/or online marketing and/or advertising.
Advertiser agrees to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with CAN-SPAM. Advertiser agrees to maintain an updated unsubscribe suppression list for the offer covered under the IO and will make such list available to the Company. Company agrees to 1) check such suppression list on a daily basis; 2) maintain similar suppression lists for opt-out requests that Company receives directly from its email recipients in association with the offer covered under the IO; 3) transmit all unsubscribe requests back to the Advertiser within five (5) days of its receipt of such requests and maintain electronic records evidencing the date and time of removal of such email address(es) from its lists and/or databases. Company explicitly agrees not to use any suppression list for purposes of e-mail marketing (or provide a suppression list, or any part thereof, to any third party for said purpose) and will not send, or cause to be sent, any commercial e-mail messages to an e-mail address appearing on any suppression lists. Company agrees not to use suppression list for purposes of e-mail appending in any manner whatsoever. Any consumer data records provided to Advertiser by Company as part of Advertising shall consist of individuals that have provided “prior express written consent” (“Consent Records”) to receive commercial telephone calls to the telephone number(s) provided. For purposes hereof, the term “prior express written consent” shall have the same meaning set forth under TCPA. Company shall retain the Consent Records for the time periods required by the TCPA and shall provide such Consent Records to Advertiser upon reasonable request. Company agrees to indemnify and hold Advertiser harmless from and against any claims incurred by Advertiser caused by Company’s failure to comply with the provisions set forth in the TCPA.
17. GOVERNING LAW; JURISDICTION AND DISPUTE RESOLUTION.
This Agreement will be governed and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles. The parties consent to jurisdiction and proper venue in Volusia County, Florida. Both parties agree that they will attempt to resolve all disputes first by mediation with a mediator selected by both parties, and the costs of mediation to be equally shared. If the dispute cannot be resolved through mediation, the Parties shall submit the dispute to binding arbitration pursuant to the commercial arbitration rules of the American Arbitration Association to be conducted within Volusia County, except that any claim seeking injunctive relief may be brought in the appropriate state or federal court for Volusia County. The party that substantially prevails in any arbitration or litigation brought under this Agreement shall be entitled to recover its reasonable attorney’s fees and costs. Both parties acknowledge and agree that the Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any state having jurisdiction and shall not be governed by the United Nations Convention on the International Sale of Goods.
If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Publisher may not assign the Agreement without the prior written consent of Advertiser. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by the Agreement. The Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but the same instrument. The Agreement may be executed and delivered by email or facsimile and the parties agree that such email or facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures. Any notices provided for or concerning this Agreement shall be in writing and sent via overnight courier to the respective address of each party in the applicable IO. The addresses may be changed at any time by giving prior written notice. Any notices to Advertiser, however, shall be sent with a copy via email to the attention of the general counsel at email@example.com.
19. OTHER AGREEMENTS.
This Agreement sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change this Agreement.
Updated: June 26, 2020.