TERMS AND CONDITIONS
I. DEFINITIONS
1.1. “Action Required” shall have the meaning set forth on the Order Form, if any.
1.2. “Advertiser” shall mean the company and/or representative placing the advertisement and/or executing the Agreement.
1.3. “Offer” shall have the meaning ascribed to it in Section 2.1 below.
1.4. “Offer Criteria” shall mean that information required by the Advertiser and set forth on the Order Form that is used in determining whether or not an Offer will be presented to a Registrant.
1.5. “Offer Page or Offer Placement” shall mean a customized webpage or advertising offer placement developed by INVESTING MEDIA SOLUTIONS that presents one or more offers from various advertisers, including one or more Offers by Advertiser, on or linked to a Web Publisher Client website.
1.6. “Opt-In Customer” shall mean a Registrant that chooses or “opts-in” or completes the Required Action to receive one or more offers from Advertiser via an Offer Page.
1.7 “INVESTING MEDIA SOLUTIONS Website” shall mean the website of INVESTING MEDIA SOLUTIONS located at www.InvestingMediaSolutions.com.
1.8. “Order Form” shall mean the first page of this Agreement and each subsequent Order Form page entered into pursuant to this Agreement.
1.9. “Per Lead Fee” shall mean the amount set forth on each Order Form for the Registrant Data, or portion thereof ordered by Advertiser as set forth on each Order Form, of each Opt-In Customer delivered to Advertiser.
1.10. “Per Required Action Fee” shall mean the amount set forth on each Order Form for the Required Action as set forth on each Order Form of each Opt-In Customer
1.11. “Registrant” shall mean a person visiting, registering or revisiting a Web Publisher Client’s website and is submitting, or has submitted in the past, his or her information on a Web Publisher Client’s website.
1.12. “Registrant Data” shall mean the registration data, including without limitation, Registrant full name, mailing address, email address, phone number, IP address and other demographic data, in digital format delivered by a Registrant to a Web Publisher Client and then provided by a Web Publisher Client to INVESTING MEDIA SOLUTIONS.
1.13. “Service Commencement Date” shall mean the date as set forth on the Order Form.
1.14. “Services” shall mean those services described in Section 3 below and also listed on the Order Form.
Capitalized terms not otherwise defined in these Terms and Conditions shall have the same meaning ascribed to such terms in the Order Form.
II. ADVERTISER OBLIGATIONS
2.1. Development and Delivery of Offer(s) and Offer Criteria
A. The description of each offer by Advertiser (“Offer”) to be presented to a Registrant by INVESTING MEDIA SOLUTIONS under this Agreement shall be set forth on an Order Form executed by both parties.
B. Advertiser shall for each Offer include on the Order Form, the Offer Criteria, the specific Registrant Data for each Opt-In Customer to be transferred to Advertiser, if any, the Action Required and the Advertiser’s applicable privacy policy, each as applicable to the Offer. Separately, in an email from the Advertiser, the creative, content and intellectual property (including logos and trademarks) to be presented on an Offer Page, custom questions, if any, and on the confirmation email (if any), any custom question(s), and the method and format by which the Registrant Data for an Opt-In Customer shall be transferred to Advertiser by INVESTING MEDIA SOLUTIONS.
2.2. Opt-In Customer Counts
Advertiser agrees to a maximum rejection rate of 10% for duplicate and invalid leads. Monthly Opt-In Customer counts will be delivered on or about the first business day of the month following the delivery month of Opt-In Customers to Advertiser. Any discrepancy of the delivered Opt-In Customer count must be communicated in writing by Advertiser to INVESTING MEDIA SOLUTIONS within 7 days of receipt of Opt-In Customer count notification. After 7 days, delivered Opt-In Customer count is final and non-negotiable.
2.3. License
During the term of this Agreement, Advertiser hereby grants INVESTING MEDIA SOLUTIONS a license to use Advertiser’s intellectual property, including without limitation, Advertiser’s trademarks, logos and copyrights, solely in accordance with the delivery of the Services hereunder, including the delivery of such trademarks, logos and copyrights included in offers served to Web Publisher Client websites and other related online distribution under the control of Web Publisher Client. In addition, Advertiser grants to INVESTING MEDIA SOLUTIONS a non-exclusive license to use Advertiser’s intellectual property in various advertising materials, including, without limitation, press releases and the INVESTING MEDIA SOLUTIONS website located at www.InvestingMediaSolutions.com. Advertiser acknowledges and agrees that no right or license is granted hereunder to Advertiser to use any intellectual property of INVESTING MEDIA SOLUTIONS or any of its Web Publisher Clients.
2.4. On-going Assistance
Advertiser shall provide reasonable on-going assistance to INVESTING MEDIA SOLUTIONS with regard to technical, administrative and service-oriented issues relating to the Services.
2.5. Advertiser Hardware and Software
Advertiser shall provide all computer hardware and software necessary to connect Advertiser to the Internet.
2.6. Advertiser Privacy Policy
Advertiser shall at all times maintain a privacy policy for each Offer that is conspicuous and clearly and concisely informs a potential Opt-In Customer about the collection, use and disclosure of his or her personal information by Advertiser.
2.7. Use and Transfer Restrictions on Registrant Data
Advertiser acknowledges and agrees that the Registrant Data transferred to Advertiser by INVESTING MEDIA SOLUTIONS shall be used only for purposes of contacting an Opt-In Customer with respect to the specific Offer selected by such Opt-In Customer and in accordance with Advertiser’s privacy policy and all applicable laws related to data privacy. Advertiser shall not sell, lease, rent or otherwise use the Registrant Data regardless of the terms of its privacy policy. Advertiser agrees to provide a commercially reasonable means for an Opt-In Customer to unsubscribe from the Advertiser’s Offer that is consistent with then current applicable law.
2.8. Advertiser Representations and Warranties
Advertiser represents and warrants that (i) Advertiser owns or has a valid license to use all intellectual property included in Advertiser’s Offer(s), (ii) none of the links to websites contained in an Offer does or will at any time contain any pornographic, racial, ethnic, software pirating or hacking, hate-mongering, or otherwise objectionable content; and (iii) Advertiser will not engage in any illegal activity. Any breach of the foregoing warranties by Advertiser may result, at INVESTING MEDIA SOLUTIONS’ sole discretion, in the immediate termination of this Agreement and the forfeiture of any and all monies owed by INVESTING MEDIA SOLUTIONS to Advertiser and the immediate payment of all amounts owed by Advertiser to INVESTING MEDIA SOLUTIONS.
III. SERVICES
3.1. In its sole discretion, INVESTING MEDIA SOLUTIONS will place Advertiser’s Offer(s) on various websites and networks deemed appropriate for display of Offer and the transfer of Registrant Data to Advertiser upon the selection of or opt-in to such offer(s) by a Registrant;
IV. TERM AND TERMINATION
4.1. Term
After the Service Commencement Date, this Agreement shall remain in full force and effect until fulfillment of Agreement.
4.2. Termination
1. INVESTING MEDIA SOLUTIONS may terminate this Agreement without cause upon 7 days written notice to Advertiser.
2. Either party may terminate the Agreement upon written notice if the other party:
A. materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following written notice to the breaching party;
B. becomes insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or the other party applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property (or such receiver, trustee or similar officer is appointed without its consent); or the other party institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against the other party and is not dismissed within ninety (90) days; or any judgment, writ, warrant or attachment or execution of similar process is issued or levied against a substantial part of the property of the other party and remains unsatisfied for ninety (90) days.
4.3. Effect of Termination
Upon termination of this Agreement, the licenses granted herein will terminate immediately and Advertiser shall cease receiving Registrant Data from INVESTING MEDIA SOLUTIONS. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief. Advertiser will pay INVESTING MEDIA SOLUTIONS for all leads generated up to and including the day of termination.
V. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
5.1. Infringement Indemnity
A. INVESTING MEDIA SOLUTIONS shall have no liability for any claim of infringement based on the combination, operation, or use of any INVESTING MEDIA SOLUTIONS Services furnished under this Agreement with programs or data, including without limitation, Advertiser creative or Offers, not furnished by INVESTING MEDIA SOLUTIONS if such infringement would have been avoided by the use of the INVESTING MEDIA SOLUTIONS Services without such programs or data.
In the event the INVESTING MEDIA SOLUTIONS Services are held or are believed by INVESTING MEDIA SOLUTIONS to infringe, INVESTING MEDIA SOLUTIONS shall have the option, at its expense, to (a) modify the INVESTING MEDIA SOLUTIONS Services to be non-infringing, (b) obtain for Advertiser a license to continue using the INVESTING MEDIA SOLUTIONS Services, or (c) terminate this Agreement. This Paragraph 5.1 states INVESTING MEDIA SOLUTIONS' entire liability for infringement.
B. Advertiser assumes the sole responsibility for its content including, without limitation, compliance with all governmental requirements related to Advertiser (including compliance with all Federal Trade Commission rules, regulations and guidelines), Registrant Data and Advertiser’s business. Advertiser shall indemnify, defend and hold harmless INVESTING MEDIA SOLUTIONS and their directors, officers, employees and agents, and defend against any action brought against the same with respect to any and all losses, claims, liabilities, causes of action, debt, damages and expenses of any nature, including, without limitation, attorneys’ fees, arising out of Advertiser’s use of the INVESTING MEDIA SOLUTIONS Website, the content, quality, performance and all other aspects of the Registrant Data, including the transmission, maintenance, retention, transfer or access to the Registrant Data or the equipment and facilities used by Advertiser or Advertiser’s other use of the Internet.
5.2. Warranties and Disclaimers
A. Warranties
EXCEPT AS SET FORTH IN THIS SECTION 5.2(A), ADVERTISER EXPRESSLY AGREES THAT USE OF THE SERVICES AND ANY OTHER SERVICES PROVIDED BY INVESTING MEDIA SOLUTIONS ARE AT ADVERTISER’S SOLE RISK. NEITHER INVESTING MEDIA SOLUTIONS NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE; NOR DOES INVESTING MEDIA SOLUTIONS OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, THE NUMBER OF OPT-IN CUSTOMERS GENERATED AND DELIVERED TO ADVERTISER BY INVESTING MEDIA SOLUTIONS OR ITS WEB PUBLISHER CLIENTS, AND ANY OTHER SERVICES PROVIDED BY INVESTING MEDIA SOLUTIONS.
B. Limitations on Warranties
EXCEPT AS SET FORTH IN SECTIONS 5.2(A)(i) and 5.2(A)(ii) ABOVE, THE SERVICES ARE DISTRIBUTED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
C. Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
INVESTING MEDIA SOLUTIONS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM INVESTING MEDIA SOLUTIONS’ DATA CENTERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH INVESTING MEDIA SOLUTIONS’ ADVERTISERS’ CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH INVESTING MEDIA SOLUTIONS WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, INVESTING MEDIA SOLUTIONS CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, INVESTING MEDIA SOLUTIONS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
5.3. Exclusive Remedies
For any breach of the warranties contained in Paragraph 5.2(A)(i) and/or 5.2(A)(ii) above, Advertiser’s exclusive remedy, and INVESTING MEDIA SOLUTIONS' entire liability, shall be the correction by INVESTING MEDIA SOLUTIONS of defects in the Services, or the service levels or, if after repeated efforts INVESTING MEDIA SOLUTIONS is unable to make the Services or the service levels operate in accordance with the warranty, then Advertiser may terminate this Agreement with no further obligations.
5.4. Limitation of Liability
NEITHER INVESTING MEDIA SOLUTIONS NOR ANY OF ITS UNDERLYING SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL DAMAGES, LOST DATA, LOST REGISTRANT DATA, LOST REVENUE OR LOST PROFITS SUFFERED BY ADVERTISER OR ANY OTHER PARTY AS A RESULT OF THE OPERATION OR MALFUNCTION OF THE SERVICES, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding anything to the contrary in this Agreement, INVESTING MEDIA SOLUTIONS' maximum aggregate liability for damages under this Agreement shall BE THE TERMINATION OF THIS AGREEMENT. The provisions of this Article V allocate the risks under this Agreement between INVESTING MEDIA SOLUTIONS and Advertiser. INVESTING MEDIA SOLUTIONS' pricing reflects this allocation of risk and the limitation of liability specified herein.
VI. PAYMENT PROVISIONS
Advertiser shall pay to INVESTING MEDIA SOLUTIONS the sum of the (i) number of Opt-In Customer’s Registrant Data transferred to Advertiser for an Offer times the Per Lead Fee for that Offer for all Offers of Advertiser, and (ii) number of completed Actions Required by Opt-In Customers of Advertiser’s Offer(s) times the Per Action Required Fee for that Offer for all Offers of Advertiser. All payments shall be made in U.S. Dollars by Advertiser to INVESTING MEDIA SOLUTIONS in accordance with the Payment Terms set forth on the Order Form. All past due amounts shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is greater. INVESTING MEDIA SOLUTIONS may, after three (3) days’ written notice to Advertiser, suspend the Services under this Agreement, without liability, until all past due amounts have been paid in full, excluding non-payment for amounts disputed in good faith. Advertiser will be charged $50 for payments by checks that are returned due to insufficient funds. INVESTING MEDIA SOLUTIONS shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. Advertiser agrees that in the event a collection suit is commenced, in any proceeding for default judgment INVESTING MEDIA SOLUTIONS may, in lieu of seeking statutory attorneys’ fees, elect to recover one-third of the outstanding principal plus penalties as stipulated attorneys' fees. Such an election is in INVESTING MEDIA SOLUTIONS’ sole discretion.
Parties shall keep, maintain and preserve, for the term of this Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder (the “Relevant Records”). Either party shall have a right at least once per calendar year to audit the Relevant Records of the other party for the purpose of verifying fulfillment of party’s payment obligations pursuant to this Agreement. Each audit will be conducted at a place agreed to by the parties, during the normal business hours, with at least ten (10) business days prior written notice to party to be audited. Auditing party shall pay the fees and expenses of the audit, unless the audit reveals a payment discrepancy of more than ten percent (10%) of all payments due in any consecutive six (6) month period, in which case audited party shall pay the reasonable fees and expenses of the audit, and shall immediately pay to auditing party all amounts found to be due.
VII. GENERAL TERMS
7.1. Nondisclosure
By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Services and all information clearly marked as confidential. A party's Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party as evidenced by its written records. Non-identifiable information which is not Confidential Information of Advertiser may be used by INVESTING MEDIA SOLUTIONS in its business, provided that such non-identifiable information cannot be linked to Advertiser. The parties agree this Section 7.1 shall survive any termination or expiration of this Agreement for a period of five years, provided with respect to Confidential Information that constitutes a trade secret under applicable law, including without limitation, the Services, the parties obligations under this Section 7.1 shall survive for the longer of five years or so long as such Confidential Information remains a trade secret under applicable law. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than, with respect to Confidential Information received by INVESTING MEDIA SOLUTIONS, to implement this Agreement, and, with respect to Confidential Information received by Advertiser, to use the Services as provided herein. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement.
7.2. Ownership
INVESTING MEDIA SOLUTIONS owns all right, title and interest in and to the INVESTING MEDIA SOLUTIONS Website, its intellectual property, the Services, including without limitation, any technology developed by or on behalf of INVESTING MEDIA SOLUTIONS. Advertiser owns all right, title and interest in and to its intellectual property (including its logos and trademarks delivered to INVESTING MEDIA SOLUTIONS hereunder). Each of Web Publisher Client, INVESTING MEDIA SOLUTIONS and Advertiser shall have the right to use and transfer the Registrant Data in accordance with the terms of this Agreement and any applicable privacy policy.
7.3. Governing Law; Jurisdiction
This Agreement shall be governed by the laws of the State of New York, and shall be deemed to be executed in the State of New York. In any legal action relating to this Agreement, Advertiser agrees (a) to the exercise of jurisdiction over it by a state or federal court in New York, New York or the United States District Court for the Southern District of New York; and (b) that if Advertiser brings the action, it shall be instituted in one of the courts specified in subparagraph (a) above. INVESTING MEDIA SOLUTIONS may institute legal action in any appropriate jurisdiction.
7.4. Notice
All notices, including notices of address change, required to be sent hereunder shall be in writing delivered by registered or certified mail or by reputable overnight delivery service to the first address listed in the relevant Order Form (if to Advertiser) or to the INVESTING MEDIA SOLUTIONS address on the Order Form (if to INVESTING MEDIA SOLUTIONS). Notices may be changed upon written notice sent in accordance with this Section 7.4. Notices shall be effective upon receipt.
7.5. Severability
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
7.6. Force Majeure
Except for obligations of confidentiality and payment hereunder, neither party shall be in default by reason of any failure in performance of this Agreement if such failure arises, direct or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, default by subcontractors or suppliers, acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, terrorist acts, labor, fire, flood, epidemic, restrictions, and/or strikes.
7.7. Independent Contractor
The parties to this Agreement shall be independent contractors and nothing herein shall be deemed or construed to create a partnership or joint venture between them. Except as expressly described herein, neither party shall have any power whatsoever to obligate or bind the other party hereto in any manner.
7.8 Entire Agreement
This Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof and supersedes all previous agreements or representations, written or oral, with respect to the subject matter herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party hereto. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach