DEFINITIONS. When used in the Agreement, the following capitalized terms, whether singular or plural, are defined as follows:
"Action" means the occurrence of any qualified action, event, or occurrence, which triggers RRM’s obligation to pay Affiliate a Fee or any portion thereof, as further described in the IO(s), Offer(s), and/or Campaign(s). Such events may include, but are not limited to, a click, Lead, sale, registration, qualified call, call request, call transfer, form completion, inquiry, conversion, view, or other event identified in the IO(s) that may pertain to a type of Campaign.
"Ad" means any advertisement, including Creative.
"Advertiser" means the Advertiser and its members, managers, officers, directors, shareholders, employees, contractors, agents, and representatives, that seeks to engage in a Campaign and/or promote an Offer aimed at selling, marketing, or promoting that Advertiser’s products or services as described in their IO(s).
"Affiliate" or "Publisher" means each 3rd party independent individual, company, or other entity that serves as an advertising publisher, affiliate, within the RRM network exchange that owns advertising space, links, newsletters, websites, email lists, customer leads, or other media used for the purpose advertising or marketing campaigns and offers for the Advertisers within the RRM Network Exchange. A Publisher earns a Fee for referring web-based traffic, visitors, users, callers or consumers to an Advertiser’s Offer, website, landing page, product, or service.
"Campaign" means the unique combination of the Advertiser’s Offer(s) aimed at selling, marketing, or promoting an Advertiser’s products or services as more specifically described in the IO(s), and which serves as the basis for Affiliates to acquire prospective consumers for an Advertiser’s website, products, or services.
"Confidential Information" means any information disclosed by either Party to the other, either directly or indirectly, in any form, including written, oral, and digital information that has commercial and other value in the Disclosing Party’s business and is confidential in nature including, but not limited to, business, financial, customer, supplier and product development plans, forecasts, strategies, trade secrets, information on strategic partnerships and alliances and customer relationships, and other technical and business information oral or visual information that is identified (orally or in writing) as confidential at the time of disclosure or that should, under the circumstances surrounding disclosure, reasonably be treated as confidential and information,
"Creative", "Ad", "Advertisement" or "Content" means the advertising and creative content provided, created, or developed by the Advertiser, including without limitation, product or service descriptions, graphics, images, logos and text (copy)..
"Fee" means the amount paid to Affiliate by RRM, subject to this Agreement, which may be generated by an Action subject to the IO(s). RRM facilitates payment from Advertisers to Affiliates for Actions that they generate that are purchased by the Advertiser.
"Incentivized" means a form of advertising where an online customer or user is offered something of value, such as reward, cash, gift card, online or virtual currency, or tangible gift, in exchange for performing an action, or registering or purchasing a product or service.
"IO" means the executed Insertion Order(s), which will set forth all details regarding the Ad or Campaign, including but not limited to compensation to RRM, graphics, etc. Each IO is to be sequentially numbered and will, upon execution by both of the Parties hereto, be incorporated into and become part of this Agreement. In the event of any conflict between this Agreement and any IO, the terms and conditions of the applicable IO shall control.
"Laws" means all applicable laws, statutes, ordinances, regulations, and legal guidelines in every jurisdiction in which Affiliate conducts business, including, without limitation, those related to the consumer protection; unfair, fraudulent, false or deceptive advertising,; cybersquatting;, infringement of intellectual property, privacy, publicity rights and website accessibility;, the Federal Trade Commission Act ("FTC Act"), Federal Trade Commission ("FTC") regulations and guidelines implementing the FTC Act, all state and local counterparts to the FTC Act and associated regulations in every jurisdiction in which Affiliate conducts business;, Chapter 501, Nevada Statutes (Nevada’s Deceptive and Unfair Trade Practices Act;), the CAN-SPAM Act of 2003; the Telephone Consumer Protection Act, regulations relating to the National Do Not Call Registry and applicable state Do Not Call List requirements, and the FTC's Telemarketing Sales Rule; state telemarketing laws and regulations including (without limitation) those passed in Florida, New York, Oklahoma and Washington; the Federal Reserve Board's Regulation E;, the Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Gramm-Leach-Bliley Act and any rules promulgated by the Consumer Protection Financial Bureau; Federal Communications Commission regulations and guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, all as amended from time to time.
"Lead" means information obtained from an individual in response to a Campaign.
"Mobile" means a method of promotion or advertising offer to be displayed on mobile communication devices.
"Network or Exchange" RRM is a technology-based pay-per-call network exchange that serves as an intermediary through which independent businesses/service providers ("Advertisers"), can bid for inbound consumer call leads which are generated by independent, third-party media Affiliates ("Affiliates") who have signed up for the RRM network. RRM facilitates payment from Advertisers, to those Affiliates for the inbound calls/leads they generate that are purchased by the Advertiser. RRM does not market nor sell any products nor services to consumers and does not create or disseminate consumer-directed advertisements for itself or on behalf of Advertisers. Affiliates or Advertisers create the Advertisements that generate consumer calls or leads (Actions), which are then routed through RRM’s technology-based Exchange to the highest-bidding Advertisers and Affiliates are paid for the calls they generate which are purchased by the Advertiser.
"Network Site(s)" means the specific location of the website, platform and systems that host the Network operated by RRM, such as Everflow.
"Offer" means the particular advertising offer, website, or landing page for the Advertiser’s products or services associated with a Campaign, which may be described in the IO(s).
"Publisher E-mail" means electronic mail messages used in a Campaign by Publisher, including, but not limited to, those sent to e-mail addresses listed in Publisher’s database and/or any other database affiliated with, owned, operated and/or controlled by Publisher to carry out the Services under the Agreement.
"Publisher Website" means any website, content or materials published, owned, operated and/or controlled by Publisher used to carry out the Services under the Agreement.
"Radio" means a method of promotion or advertising to be distributed or played on radio channels/stations, which typically occurs with PPC advertising.
"Reg-Path" means a method of promotion or advertising where a Publisher or Advertiser advertisement or creative is distributed through a registration form or registration process.
"Remarketing" or "Retargeting" means a method of promotion or advertising that involves serving Publisher or Advertiser advertisements to prospective consumers or visitors of a website, application or landing page, after visiting a website, application or landing page.
"Search" means a method of promotion or advertising that a Publisher or Advertiser may use to seek to promote a website or landing page by increasing visibility in search engine results, such as those in Google or Yahoo, and may include search engine optimization, paid placement, and paid inclusion.
"SEO" means "search engine optimization," a method of a Publisher or Advertiser improving a website to improve rankings on search engines though organic, crawler-based listings. The SEO process may involve using targeted and relevant keywords and phrases that will drive traffic or online users to the website or landing page.
"Services" means the services to be provided by RRM by providing a Network Exchange that allows Advertisers to bid on and purchase calls and/or leads (Actions) generated by the Network’s Publishers in accordance with the terms of the Advertiser and Publisher Agreements.
"Site" means the website at xy7elite.com, wequote.org and consumer-selections.com through which the Service is accessed.
"Social" or "Social Media" means a method of promotion or advertising where a Publisher or Advertiser uses an advertisement or display banner is published on a social media website or application, such as Facebook.
"Telemarketing" means a method of promotion or advertising whereas a Publisher or Advertise markets products or services by means of telephone calls to potential customers.
Other terms are defined throughout this Agreement.
1. PAYMENT, CLAIMS OR DISPUTES, AND REFUNDS
2. ADVERTISER'S RESPONSIBILITIES, REPRESENTATIONS, WARRANTIES, AND COVENANTS.
3. FRAUD, CLAIMS AND DISPUTES. Advertiser acknowledges that there is a potential for fraud by third parties, which is outside the control of RRM, and that Advertiser shall timely and immediately report any instances of fraud. The term "fraud" is defined to include, without limitation, invalid leads, which are leads that do not generate actual consumer interest in an Advertiser's campaign or offer, which may or may not be the result of any wrongdoing of the Publisher in generating the lead or the consumer in providing his or her information in response to a Publisher' advertisement or lead form. As a result, Advertiser agrees that RRM shall not be liable for any and all instances of fraud by third parties, such as end users or consumers, and Advertiser agrees to pay RRM in full for the Services performed under the Agreement, notwithstanding any alleged, potential or actual fraud committed by any third parties. Advertiser further understands that RRM implements policies and procedures to reduce and combat against fraud, and that should RRM discover any fraud, it reserves the right to immediately terminate the Services and the Agreement, if necessary, in addition to pursuing any additional legal remedies. Although RRM implements policies and procedures to reduce and combat against fraud; without sufficient proof of fraud as determined by RRM, Advertiser shall remain obligated to pay RRM for the Services performed under the Agreement.
4. LICENSE. RRM grants Advertiser a revocable, non-transferable, non-sublicensable, non-exclusive limited license to participate in the Network and use the Network Site(s) and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purpose of utilizing the Services hereunder and subject to these Terms and the applicable Offer or Campaign. Advertiser acknowledges and agrees that Advertiser does not have, nor will it claim any right, title or interest in the Network Site(s) software, applications, data, methods of doing business or any elements thereof, or any content or information provided on the Network Site(s). Advertiser may only access the Network Site(s) via web browser, e-mail or in a manner approved by RRM. Advertiser shall not alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network Site(s), and its tags, source codes, links, pixels, modules or other data provided by or obtained from RRM that allows RRM to measure ad performance, track data or Actions, and provide its Services. In addition, Advertiser acknowledges that all Confidential Information, as defined herein, non-public information, data and reports received from RRM hereunder or as part of the Services hereunder is proprietary to and owned by RRM. If instructed to do so by RRM and/or if Advertiser shall be terminated by RRM, Advertiser shall immediately destroy and discontinue the use of any and all RRM data, including Network Site(s), all Confidential Information, and any other material owned by RRM or its clients and Publishers.
5. TERMINATION. Either Party may terminate the Agreement, and/or any particular Insertion Order(s), at any time, by delivering to the other Party no less than forty-eight (48) hours advance written notice of the terminating Party's intention to terminate. No termination shall be effective, and the Agreement shall remain in full force and effect, until forty-eight (48) hours have elapsed from the time the other Party receives the terminating Party's notice of termination. Advertiser shall continue to be obligated to pay for all Actions and associated Fees generated by the Campaign during the forty-eight (48) hour period until termination becomes effective. Upon termination or expiration of the Agreement, for any reason, Advertiser shall:
Advertiser understands and agrees that RRM will permit the Advertiser to utilize the Services and participate in the Network, subject to Advertiser's compliance with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any policies established by RRM from time to time, which are hereby expressly incorporated by reference in these Terms. Should Advertiser fail to comply with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any of RRM's policies, RRM may immediately suspend or terminate the Services and/or Advertiser's participation in the Network without notice, effective immediately, which includes, but is not limited to, suspending or terminating a Campaign, and/or removing any of Advertiser's Creatives. In the event of suspension or termination of Advertiser, Advertiser shall pay RRM for all outstanding amounts then due and owing in accordance with the terms of the Agreement, and RRM will have no further obligation to Advertiser.
6. NON-DISCLOSURE AND CONFIDENTIALITY. .
7. INDEMNIFICATION. Advertiser agrees to defend, indemnify and hold harmless RRM and its affiliates and their respective members, managers, directors, officers, employees, and agents (collectively "Indemnitees") from any and all actions, suits, claims, demands, investigations, obligations, debts, losses, damages, liabilities, penalties, injury, costs and expenses (including reasonable attorneys' fees and amounts paid in settlement) (collectively "Indemnified Losses") incurred or suffered by one or more of the Indemnitees by reason of, or arising out of any of the following: (a) Advertiser's breach of or failure to to perform any of its respective covenants or obligations set out in this Agreement or applicable Insertion Order(s), (b) Advertiser's Creatives, Ads, or Ad Content, (c) Advertiser's negligence, acts, errors, or omissions, or (d) any products or services linked to Advertiser's Creatives, Ads, or Ad Content. Advertiser agrees to defend and/or reimburse Indemnitees on demand for any Indemnified Losses suffered by Indemnitees. If any action is brought against Indemnitees with respect to any allegation for which indemnity or defense may apply hereunder, Indemnitees will notify Advertiser of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Advertiser at Advertiser'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. Advertiser shall not acquiesce to any judgment or enter into any settlement that adversely affects Indemnitees' rights or interests without the prior written consent of Indemnitees.
8. DISCLAIMER OF WARRANTIES. RRM PROVIDES ITS SERVICES AND THE SERVICES OF ITS PUBLISHERS 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 OF THE SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY OF RRM'S SERVICES, RRM'S SOLE OBLIGATION WILL BE TO RESTORE THE SERVICES AS SOON AS PRACTICABLE. RRM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL RRM BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTION OF BUSINESS, LOSS OF USE, LOST BUSINESS, LOST PROFITS, LOSS OF INFORMATION OR DATA, OR THE LIKE (EVEN IF RRM WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR INSERTION ORDER(S), OR ADVERTISER'S USE OF RRM'S SERVICES OR NETWORK SITE(S). UNDER NO CIRCUMSTANCES SHALL RRM BE LIABLE TO ADVERTISER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY RRM FROM ADVERTISER UNDER THE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO LIABILITY. RRM SHALL NOT BE RESPONSIBLE FOR ANY CONDUCT, ACTION, INACTION, OR FRAUD OF THE ADVERTISER, PUBLISHER(S), SUB-PUBLISHER(S), ONLINE USERS, OR ANY THIRD PARTIES.
10. Restrictive Covenants Independent. Each restrictive covenant set forth in this Agreement shall be construed as a covenant independent of any other covenant or provision of this Agreement between the Parties, and the existence of any claim or cause of action against RRM, whether predicated upon another covenant or provision of the Agreement or otherwise, shall not constitute a defense to the enforcement by RRM of any other covenant or this Agreement.
11. NOTICES. All notices shall be sent to the addresses submitted by Advertiser when enrolling, registering, or creating an account with RRM, or when using RRM's Network Site(s) or Services, by certified mail, facsimile, electronic mail (e-mail) or courier. RRM's Services are conducted and provided electronically. Therefore, Advertiser agrees that RRM may communicate electronically with Advertiser with respect to any and all matters relating to the Services.
12. SURVIVAL. Each provision of the Agreement reasonably intended by its terms to survive termination or expiration of the Agreement, including, but not limited to, Sections 2, 4, 5, 7, 8, 9, 15, and 16, shall so survive.
13. ATTORNEYS' FEES. In the event of any dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, whether incurred before suit, during suit, or at the appellate level, including all attorneys' fees and costs incurred in litigating entitlement to attorneys' fees and costs, as well as all attorneys' fees and costs determining or quantifying the amount of recoverable attorneys' fees and costs. The reasonable costs to which the prevailing party is entitled shall include all costs that are taxable under any applicable statute, rule, or guideline, as well as all non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable under any applicable statute, rule, or guideline.
14. WAIVER OF JURY TRIAL. EACH PARTY TO THE AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THE AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT, CAMPAIGN, OFFER, THE INSERTION ORDER(S), OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
15. MISCELLANEOUS. The Agreement will be governed and construed in accordance with the laws of the state of Nevada without giving effect to conflict of laws principles, and all federal law. In the event of any dispute between the Parties arising from the Agreement, including the Insertion Order(s), Advertiser agrees to submit to exclusive jurisdiction and venue in the courts of Palm Beach County, Nevada. 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. Advertiser may not assign the Agreement without the prior written consent of RRM. The Parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and 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, including the Parties' Insertion Order(s) between the Parties, 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. Except as otherwise set forth herein, only a writing signed by both Parties may change the Agreement or any Insertion Order(s). In the event the terms of any Insertion Order(s) and these Terms conflict, the Insertion Order(s) will govern only with respect to the duration of the Services, Fees, invoicing and payment terms, otherwise these Terms shall govern and control. RRM's failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The terms of the Agreement, together with any additional terms contained in any Insertion Order(s), comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.1. APPROVAL OF AFFILIATE. Affiliate acknowledges and agrees that Affiliate must obtain official approval from RRM before Affiliate may become an approved Affiliate and participate in the Network, Campaign(s) and/or Offer(s), access the Network Site(s), and before it may receive payment of Fees. If approved, Affiliate will be issued a unique username and password to access the Network Site(s), neither of which may be used by any person other than the Affiliate. Affiliate agrees not to disclose such username and password to any other person or entity, and agrees to keep such information strictly confidential. In order to be eligible to become an approved Affiliate, receive Fees, and in order to maintain an active Affiliate status with the Network, unless otherwise expressly agreed to in the Insertion Order(s), Affiliate must at all times meet the following criteria:
(a) Affiliate may be required to submit the completed Affiliate Record Form, Affiliate Payment Terms form, and Direct Deposit Form, any applicable vendor questionnaires and maintain updated contact and payment information at all times with RRM.
(b) Affiliate shall remain qualified and licensed to do business and in good standing in every jurisdiction where such qualification and/or licensing is required for purposes of providing Services under this Agreement;
(c) Affiliate must have the full right, power and authority to enter into the Agreement and to perform its obligations under the Agreement; Affiliate must have taken all necessary corporate action to authorize the execution of the Agreement by its representative who has approved or executed these Terms, and who is authorized to bind Affiliate to all terms of the Agreement;
(d) Affiliate shall comply with all Laws, as defined herein;
(e) Affiliate shall not provide any form of Incentivized traffic unless RRM provides prior written approval;
(f) Affiliate shall not in any way modify, alter, misrepresent or exaggerate the Offer or any part of the Offer;
(g) Affiliate’s Website, Affiliate's E-mails, and all Creatives shall contain legitimate content, substance and material, not simply a list of links or advertisements;
(h) Affiliate’s Website, Affiliate's E-mails, and all Creatives shall contain the appropriate and approved language in accordance with these Terms, the Offer, Campaign, and Insertion Order(s);
(i) Affiliate’s Website, Affiliate's E-mails, and all Creatives shall not use misleading or deceptive negative option billing offers, services or programs, and any negative options billing shall not hide or deceptively place cancelation or key terms in fine print;
(j) Affiliate’s Website, Affiliate's E-mails, and all Creatives shall not contain spawning process pop-ups and exit pop-ups;
(k) Affiliate’s Website, Affiliate's E-mails, and all Creatives shall not use the Advertiser's brand terms, trademarks, trade names or any other intellectual property of the Advertiser without the written consent of Advertiser and RRM;
(l) Affiliate’s Website, Affiliate's E-mails, and all Creatives shall not contain offensive, bogus, fake, false, unfair, deceptive, untruthful, unsubstantiated, fabricated, fraudulent, or misleading reports, claims, news sites, claims of independent testing or results, consumer comments, testimonials, medical advice, approvals or recommendations;
(m) Affiliate’s Website, Affiliate's E-mails, and all Creatives shall not promote nor contain any racial, ethnic, political, hate-mongering, investment, money-making opportunities, advice not permitted by law, violence, profanity; obscene or sexually explicit content; defamatory, tortious, or threatening content; private or confidential information of another person, unauthorized branding or brand names, materials that impersonate any person or entity, unauthorized endorsements, promotions of illegal activities, substances, drugs, terrorism, crimes, software piracy, hacking, or explosives; any material that contains spyware, adware, spamware, mail bomb, software viruses, computer code, files or Campaigns designed to interrupt, destroy or limit the functionality of any network, computer software or hardware or telecommunications equipment; software or processes that harvest and/or collect personal identifiable or confidential information of another person or entity without consent; material that otherwise infringes upon the rights of any third parties including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; material that violates the CAN-SPAM Act of 2003, as amended; or contain material or content related to any illegal activity whatsoever (including any violations of Laws, as defined herein);
(n) Affiliate shall not market to third-party lists without RRM’s prior written approval;
(o) Before sending any E-mails, Affiliate shall obtain express consent of all E-mail recipients, comply with all suppression lists, and shall maintain all records evidencing recipient consent or compliance with suppression lists. These records shall include, but shall not be limited to, each recipient's e-mail address, first and last name, physical address if known, opt-in date, and registration source. Affiliate shall produce such records to RRM immediately upon RRM's request, and Affiliate shall be obligated to download and comply with all suppression lists as such lists are updated on the Network Site(s).
(p) Affiliate shall comply with all caps or limitations on the volume of Actions or Leads that may be stated in the Insertion Order or as may be set by RRM during the course of a Campaign (including instructions to reduce and/or pause traffic). In no event shall RRM be liable for any Actions or Leads delivered in excess of any stated caps or limitations.
RRM will permit the Affiliate to participate in the Network, subject to compliance with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any policies established by RRM from time to time, which are hereby expressly incorporated by reference in these Terms. Affiliate shall permit RRM to audit its books and records upon two (2) business day’s prior written notice to ensure Affiliate’s compliance with these terms.
Should Affiliate fail to comply with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any of RRM's policies, RRM may immediately suspend or terminate Affiliate's participation in the Network without notice, effective immediately, which includes, but is not limited to, deactivating and eliminating Affiliate's access to the Network, and/or removing any of Affiliate's Creatives. In the event of suspension or termination of Affiliate, RRM may in its sole discretion cease any future payment of Fees, without any further obligations to Affiliate.
2. SUB-AFFILIATES. The Affiliate may engage Sub-Affiliates to perform the Services, provided that:
(a) Affiliate has obtained prior approval from RRM to engage Sub-Affiliate(s) and all Sub-Affiliates must at all time meet the criteria set forth in Section 2 above;
(b) Sub-Affiliate's tracking is set up to track on a Sub-Affiliate level allowing RRM to track and verify all Actions;
(c) Sub-Affiliate at all times complies with all the terms and conditions that are applicable to Affiliate under these Terms and the Insertion Order(s);
(d) Sub-Affiliate, in the opinion of RRM is not likely to bring the reputation, goodwill or standing of RRM into disrepute or is otherwise unsuitable; and
(e) Affiliate remains solely responsible and assumes all responsibility for the actions or inactions of Sub-Affiliate in performing the Services required by Affiliate under this Agreement.
At all times, RRM reserves the right to approve or reject any Sub-Affiliate and may revoke a prior approval of any Sub-Affiliate at any time and for any reason. Affiliate shall be solely responsible for and shall fully and unconditionally indemnify, defend and hold RRM harmless for all actions or inactions of any of its Sub-Affiliates, including the payment of RRM's attorney's fees and costs at the trial and appellate levels, if necessary. If RRM grants approval to a Affiliate's Sub-Affiliate, notices to the Affiliate shall be deemed adequate notice to that Affiliate's approved Sub-Affiliate(s). Affiliate agrees that RRM shall never have any obligation to a Sub-Affiliate to make any payment to Sub-Affiliate, including, but not limited to, the payment of any Fees due for a Campaign, or under this Agreement, and Affiliate agrees that even when Affiliate utilizes an approved Sub-Affiliate, Affiliate remains responsible to ensure that each Sub-Affiliate is properly set up for tracking and testing so that RRM may track and verify all Actions. RRM reserves the right to withhold or refuse payment to Affiliate in the event that any of its Sub-Affiliate(s) breach the terms of the Offer, or the Agreement.
3. TCPA/SMS/MMS COMPLIANCE. Affiliate represents and warrants, on behalf of itself and its sub-affiliates, and agrees that, with respect to any marketing and promotion of an Offer through a Call Center and/or SMS Marketing, that:
(a) Affiliate shall (i) complete a Call Vendor Questionnaire; (ii) provide all Call Center telephone scripts and recordings associated with any Offer along with Affiliate’s compliance policies and procedures immediately upon RRM’s request; (iii) comply with RRM’s compliance policies; (vi) upload to RRM’s compliance tracking and monitoring system all telephone calls recorded by Affiliate that are associated with an Offer; and (iv) ensure that all verbal discussions and communications between Affiliate and any consumer that are associated with an Offer and conducted through a Call Center must be recorded and/or documented in accordance with the requirements and guidelines established by RRM and uploaded to RRM’s compliance tracking and monitoring system, or as otherwise instructed by RRM.
(b) they are knowledgeable about the requirements of applicable foreign, domestic, federal, state, and local statutes, laws, ordinances, rules and regulations, carrier codes of conduct and industry standards, including without limitation, the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), the Telemarketing Sales Rule, federal and state Do Not Call rules and registries, state telemarketing laws and regulations, the Mobile Marketing Association’s U.S. Consumer Best Practices for Messaging and the CTIA’s Messaging Principles & Best Practices; the Mobile Marketing Association’s U.S. Consumer Best Practices for Messaging and the CTIA’’s Messaging Principles & Best Practices (collectively “TCPA Rules and Standards”), and that its marketing and other practices are fully compliant with, and will not violate any TCPA Rules and Standards; and
(c) they have a compliance program in place to prevent any violation of such TCPA Rules and Standards, including scrubbing contacts on any governmental or industry do not call registries;
(d) Affiliate will not make any calls without the prior express consent of the receiving party to receive calls specifically from the sender. For SMS or text messages, express consent requires disclosure of your company name, message types and frequencies, customer support (HELP) and opt-out (STOP) instructions, disclosure that messaging and data rates may apply and a reference to a website where the complete terms and conditions and relevant privacy policy are available for viewing. Consents must not be pre checked and the first message should be a confirming message restating the above elements.
(e) Publisher and its sub-affiliates shall obtain compliant opt-in records and shall maintain the same for at least two years.
(f) Publisher and its sub-affiliates are prohibited from using any automatic telephone dialing systems, including robocalls and robocall “blasts,” or any other automated system to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or any service for which the receiving party is charged for the calls; and
(g) Publisher and its sub-affiliates shall not place, or cause to be placed, any calls outside of the hours established by federal time-of-day requirements.
4. PAYMENT.
a. Subject to Affiliate's compliance with these Terms, the Insertion Order(s), and Campaign, RRM will pay Affiliate a Fee for each qualified Action in accordance with the payment terms for each Offer, Campaign, Network Site(s) and/or Insertion Order(s). Fees will be paid to Affiliate only following RRM's receipt of the Advertiser's payment of the applicable commissions and fees with respect to such Offer. RRM may, in its sole discretion and from time to time, elect to advance to Affiliate part or all of the Fees prior to the receipt of payment by an Advertiser, but in no event will RRM be obligated to do so. Affiliate acknowledges and agrees that payment of Fees may be delayed where the Affiliate has not complied with these Terms and that in no case shall RRM be liable to the Affiliate for any loss, costs or expenses directly or indirectly incurred by the Affiliate as the result of such delay. In no circumstance will RRM be obligated to pay Fees to an Affiliate unless and until the aggregate amount of the Fees due and payable to that Affiliate exceeds $2500 weekly or $500 monthly(net 30) . Fees due and payable by RRM to an Affiliate will not accrue interest. No payments will be made to an Affiliate unless and until, where RRM has determined in its discretion, that Affiliate has provided to RRM a Goods and Services Tax registration number, if the Affiliate is a Canadian Resident and a registrant for the purposes of a Goods and Services Tax
b. Affiliate will invoice RRM on a monthly basis at the payout rates agreed to by the Parties in the Insertion Order. The invoice will reflect delivery of final Campaign Data tracked by RRM pursuant to the terms of the Agreement. RRM shall make all payments to Affiliate within thirty (30) days of the Invoice Date, unless otherwise agreed to in writing. All payments made to Affiliate do not include, and Affiliate shall pay, any sales, use or similar tax associated with such payments. Parties shall keep, maintain and preserve, for the term of this Agreement and for two (2) years thereafter, accurate records relating to amounts due hereunder.
5. TRACKING. Billing shall be based on the tracking method set forth in the Insertion Order. RRM will track all Actions for each Campaign in real time and will verify all Actions delivered by Affiliate in order to calculate the Fees due to Affiliate for its Services. Campaign statistics and data compiled by RRM including, but not limited to, data, numbers and calculations regarding Actions (collectively "Campaign Data"), will be calculated by RRM through the use of industry standard tracking technology. Affiliate shall not modify or otherwise interfere with RRM's tracking methods in any way. Where RRM’s tracking is used, any questions, objections, or complaints regarding the Campaign Data must be submitted by Affiliate in writing within three (3) business days of initial appearance in the tracking system; otherwise the Campaign Data will be deemed to be accurate and approved by Affiliate, which shall be used to determine the Fee due to Affiliate. Where Affiliate’s or a third party tracking mechanism is used and there is a material discrepancy between RRM’s Campaign Data and that tracked by Affiliate or other mechanism, RRM may, in its sole discretion, use its Campaign Data and such measurement shall be final and binding.
6. LEAD GENERATION. Affiliates shall only be paid for valid actions that meet all the criteria expressly stated for a Campaign. For lead generation campaigns, Affiliate shall be paid only for leads that are (a) complete, valid and accurate; (b) relates to an actual, living person; (c) is not duplicative; (d) is not returned by RRM’s customers or advertisers; (e) is not fraudulent or generated by an automated program, incentivized by compensation or other incentives offered by the Affiliate, a Sub-Affiliate or their respective employees, agents, or attributable to their respective employees, contractors or agents; and (f) is not generated in violation of any representation, warranty or obligation of Affiliate under this Agreement. All leads shall be the sole property of RRM, as Affiliate shall not remarket to or resell any leads delivered to RRM.
7. AFFILIATE WARRANTIES. RRM grants Affiliate a revocable, non-transferable, non-sublicensable, non-exclusive limited license to participate in the Network and access the Network Site(s) and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purpose of marketing or promoting the Network, Campaign, and Offer, hereunder and subject to this Agreement, the Offer(s), and Campaign(s). If a Affiliate also maintains its own network of affiliates, such Affiliate may not provide the Network to its affiliates, without the prior written consent of RRM. Under such conditions, Affiliate will require its affiliates to agree to and comply with these Terms and the Insertion Order(s), and seek approval in accordance with Sections 2 and 3 of this Agreement. If a Affiliate fails to adhere to the foregoing requirements, in addition to any other remedies available to RRM, Affiliate shall forfeit its rights to any amounts owed by RRM to Affiliate and be subject to immediate termination. Affiliate acknowledges and agrees that Affiliate does not have, nor will it claim any right, title or interest in the Network Site(s) software, applications, data, methods of doing business or any elements thereof, or any content or information provided on the Network Site(s). Affiliate may only access the Network Site(s) via web browser, e-mail or in a manner approved by RRM. Affiliate shall not alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network Site(s), and its tags, source codes, links, pixels, modules or other data provided by or obtained from RRM that allows RRM to measure ad performance, track data or Actions, and provide RRM's services to Advertisers. In addition, Affiliate acknowledges that all Confidential Information, as defined herein, non-public information, data and reports received from RRM hereunder or as part of the Services hereunder is proprietary to and owned by RRM. If instructed to do so by RRM and/or if Affiliate shall be terminated by RRM, Affiliate shall immediately destroy and discontinue the use of all RRM data, including Network Site(s), all Confidential Information, and any other material owned by RRM or its Network Advertisers and Affiliates.
a. Affiliate shall at all times create, develop, and be responsible for, all Creatives, although there may be occasions when an Advertiser develops, and provides the Creatives for Affiliate's use and distribution. The Affiliate shall be solely responsible for the method by which the Creatives are distributed. Under no circumstances shall RRM be responsible for providing, developing, creating, or determining the accuracy, validity, appropriateness, or legality of Advertiser's or Affiliate's Creatives. All Creatives shall not violate any rights of any third parties with respect to the Creatives. Creatives shall not include any information or content that is unlawful, unfair, deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with all applicable Laws. RRM shall not have any liability for claims arising from any information or content created by third parties, including the Creatives created, developed, or used by Affiliate and Advertiser. RRM does not warrant the validity, legality, or accuracy of such Creatives, or exercise any editorial control over such Creatives, nor does RRM assume any legal obligation for editorial control of the Affiliate's and Advertiser's Creatives, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such Creatives.
b. Affiliate represents, warrants, and promises that (i) Affiliate is knowledgeable of the Laws applicable to the services to be provided to RRM and has trained its staff accordingly; and (ii) all of Affiliate's Services, Creatives, and Campaign(s) shall at all times comply with all Laws. Additionally, Affiliate shall not use any third party's intellectual property, copyrights, trademarks, trade names, service marks, or brand names, without the express written consent of RRM and the third party owner. Affiliate acknowledges and agrees that RRM shall not have the ability to control, oversee, supervise, monitor, or manage Affiliate's Services provided hereunder, including, without limitation, the creation, development, performance, or distribution of the Offer(s), Campaign(s), Creative(s). RRM shall not be required to verify or confirm the accuracy or legality of Affiliate's actions or inactions with respect to the Services being provided, and as a result, Affiliate shall rely solely upon its own independent legal counsel, experts, and compliance consultants to ensure Affiliate strictly complies with all applicable Laws at all times. Therefore, Affiliate agrees that it shall implement all necessary and adequate compliance controls and measures to ensure it complies with these Terms, and all Laws, prior to and while providing the Services. RRM is relying on Affiliate's material representations, warranties, and promises contained in these Terms, and Affiliate agrees that RRM shall not be liable, and Affiliate shall indemnify, defend and hold RRM harmless, for any violation of these Terms or Laws in any way related to the Affiliate's Services, Creatives, and Campaign(s).
c. Affiliate represents and warrants that Affiliate is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of the Agreement; Affiliate has the full right, power and authority to enter into the Agreement and to perform its obligations hereunder; Affiliate has taken all necessary corporate action to authorize the execution of the Agreement by its representative whose signature is set forth at the end hereof and who is authorized to bind Affiliate to all terms of the Agreement; and when executed and delivered by Affiliate and/or Affiliate's representative, these Terms will constitute the legal, valid and binding obligation of Affiliate, enforceable against Affiliate in accordance with its terms.
d. Affiliate represents and warrants that any data transmitted through RRM’s services, including but not limited to personal information, marketing data, and user behavior information, is the property of the user who transmits such data. However, by utilizing RRM's services, the user grants RRM a non-exclusive, royalty-free, worldwide license to use, modify, reproduce, distribute, and display such data in any format or medium, for any purpose related to the provision of RRM's services.
8. LICENSE. RRM grants Affiliate a revocable, non-transferable, non-sublicensable, non-exclusive limited license to participate in the Network and access the Network Site(s) and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purpose of marketing or promoting the Network, Campaign, and Offer, hereunder and subject to this Agreement, the Offer(s), and Campaign(s). If an Affiliate also maintains its own network of Affiliates, such Affiliate may not provide the Network to its Affiliates, without the prior written consent of RRM. Under such conditions, Affiliate will require its Affiliates to agree to and comply with these Terms and the Insertion Order(s) and seek approval in accordance with this Agreement. If an Affiliate fails to adhere to the foregoing requirements, in addition to any other remedies available to RRM, Affiliate shall forfeit its rights to any amounts owed by RRM to Affiliate and be subject to immediate termination. Affiliate acknowledges and agrees that Affiliate does not have, nor will it claim any right, title or interest in the Network Site(s) software, applications, data, methods of doing business or any elements thereof, or any content or information provided on the Network Site(s). Affiliate may only access the Network Site(s) via web browser, e-mail or in a manner approved by RRM. Affiliate shall not alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network Site(s), and its tags, source codes, links, pixels, modules or other data provided by or obtained from RRM that allows RRM to measure ad performance, track data or Actions, and provide RRM's services to Advertisers. In addition, Affiliate acknowledges that all Confidential Information, as defined herein, non-public information, data and reports received from RRM hereunder or as part of the Services hereunder is proprietary to and owned by RRM. If instructed to do so by RRM and/or if Affiliate shall be terminated by RRM, Affiliate shall immediately destroy and discontinue the use of all RRM data, including Network Site(s), all Confidential Information, and any other material owned by RRM or its Network Advertisers and Affiliates.
9. FRAUD AND DISPUTES. Affiliate shall not, or knowingly permit or incentivize any person to, inflate the number of Actions through (i) any deceptive or misleading practice, method, or technology including, but not limited to, the use of any spyware, adware, device, program, robot, redirects, spiders, computer script or other automated, artificial or fraudulent method designed to appear like a live individual or (ii) any other fraudulent or other activity that is likely to cause Consumers not to be Qualifying Traffic or Leads not to be Valid Leads. RRM may withhold, cancel, or chargeback amounts owed, or payments already made to Affiliate if it is determined or reasonably suspects, in its sole discretion, that the amount due or payment was generated by non-Qualifying Traffic or invalid Actions or Leads. Chargebacks by RRM shall be reconciled or set off against future billables or, if no Insertion Order is on-going, shall be paid by Affiliate within fifteen (15) days after notice by RRM.
10. TERMINATION. Either Party may terminate the Agreement, and/or any particular Insertion Order(s), at any time, by delivering to the other Party no less than two (2) business days’ advance written notice of the terminating Party's intention to terminate. No termination shall be effective, and the Agreement shall remain in full force and effect, until the notice period has elapsed from the time the other Party receives the terminating Party's notice of termination. Upon termination or expiration of these Terms, for any reason, Affiliate shall continue to perform its obligations under the provisions of these Terms which are to expressly survive, or that may reasonably be expected to survive, termination or expiration of these Terms.
Affiliate understands and agrees that RRM will permit the Affiliate to utilize the Services and participate in the Network, subject to Affiliate's compliance with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any policies established by RRM from time to time, which are hereby expressly incorporated by reference in these Terms. Should Affiliate fail to comply with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any of RRM's policies, RRM may immediately suspend or terminate the Services and/or Affiliate's participation in the Network without notice, effective immediately, which includes, but is not limited to, suspending or terminating a Campaign, and/or removing any of Affiliate's Creatives.
11. CONFIDENTIAL INFORMATION AND NON CIRCUMVENTION.
a. Confidentiality. Each Party agrees to use the other Party's Confidential Information solely for the purposes contemplated by this Agreement, to use with the same degree of care that such receiving Party uses to protect its own non-public and confidential information, but in no event less than a commercially reasonable degree of care, .and to refrain from disclosing the other Party's Confidential Information to any third- party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties; (b) any disclosure is required by law or by a binding court order save that, to the extent legally permissible, it shall notify the disclosing Party of such compelled disclosure and allow the disclosing Party a reasonable opportunity to object to such disclosure at the disclosing Party’s expense.
b. Non Circumvention. Affiliate recognizes that RRM may have proprietary relationships with its, Advertisers and Affiliates agrees not to circumvent RRM's relationships with RRM's Advertisers or Affiliates, or to otherwise solicit, purchase, contract for or obtain Services similar to the Services performed by RRM hereunder from any of RRM's Advertisers that are known, or should reasonably be known, by Affiliate have such a relationship with RRM. Notwithstanding the foregoing, to the extent that Affiliate can show that any such Advertisers already provided such Services to Affiliate prior to the date of the first Insertion Order(s) executed by the Parties, then Affiliate shall not be prohibited from continuing such relationship.
c. Injunctive Relief. The parties agree that monetary damages for a breach, or threatened breach, of this Section will not be adequate and that the non-breaching party shall be entitled to injunctive relief (including temporary and preliminary relief) without the requirement to post a bond, in addition to any other available legal remedies or damages. In the case of a breach by Affiliate of its non circumvention obligations, RRM shall be entitled to payment of an amount equal to one-third of fees paid to Affiliate (or projected to be paid) in the first twelve months by such Advertiser.
12. INDEMNIFICATION. Affiliate agrees to defend, indemnify and hold harmless RRM and its affiliates and their respective members, managers, directors, officers, employees, and agents (collectively "Indemnitees") from any and all third-party actions, suits, claims, demands, investigations, obligations, debts, losses, damages, liabilities, penalties, injury, costs and expenses (including reasonable attorneys' fees and amounts paid in settlement) (collectively "Indemnified Losses") incurred or suffered by one or more of the Indemnitees by reason of, or arising out of any of the following: (a) Affiliate's breach of or failure to perform any of its respective covenants or obligations set out in this Agreement or applicable Insertion Order(s), (b) Affiliate's Website, Affiliate's E-mails, and all Creatives, or (c) Affiliate's negligence, acts, errors, or omissions. Affiliate agrees to defend and/or reimburse Indemnitees on demand for any Indemnified Losses suffered by Indemnitees. If any action is brought against Indemnitees with respect to any allegation for which indemnity or defense applies under this Agreement, Indemnitees will notify Affiliate of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Affiliate at Affiliate'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. Affiliate shall not acquiesce to any judgment or enter into any settlement that adversely affects Indemnitees' rights or interests without the prior written consent of Indemnitees. Upon written notice to Affiliate demanding the defense or indemnification hereunder, Indemnitees may set off any Indemnified Losses to which Indemnitees are entitled to under this Agreement against any Fees or sums that are or will be owed to Affiliate under this Agreement, provided that nothing contained herein is intended to limit any of Indemnitees' rights or remedies that they may otherwise be entitled to under this Agreement.
13. DISCLAIMER OF WARRANTIES. RRM PROVIDES 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 OF THE SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY OF RRM'S SERVICES RRM'S SOLE OBLIGATION WILL BE TO RESTORE THE SERVICES AS SOON AS PRACTICABLE. RRM DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
14. LIMITATION OF LIABILITY. IN NO EVENT SHALL RRM BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTION OF BUSINESS, LOSS OF USE, LOST BUSINESS, LOST PROFITS, LOSS OF INFORMATION OR DATA, OR THE LIKE (EVEN IF RRM WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR INSERTION ORDER(S), OR AFFILIATE'S USE OF RRM'S SERVICES OR NETWORK SITE(S). UNDER NO CIRCUMSTANCES SHALL RRM BE LIABLE TO AFFILIATE OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY RRM FROM AFFILIATE UNDER THE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO LIABILITY. RRM SHALL NOT BE RESPONSIBLE FOR ANY CONDUCT, ACTION, INACTION, OR FRAUD OF THE AFFILIATE, SUB-AFFILIATES, ADVERTISERS, ONLINE USERS, OR ANY THIRD PARTIES.
15. YOUR CALIFORNIA PRIVACY RIGHTS.
a. California Consumer Privacy Rights (CCPA) California law provides California residents with the following privacy rights: Right to access personal information: Individuals exercising this right may request access to the categories and specific pieces of their personal information we have collected in the prior 12-month period. Individuals exercising this right may receive their personal information, when provided electronically, in a readily useable format. Right to deletion: Individuals exercising this right can ask us to delete their personal information we have collected, though we may be permitted to retain personal information for certain purposes. Right to disclosure: Individuals exercising this right can receive additional information regarding the sources from which we collect information, the purposes for which we collect and share personal information, the information of theirs we hold, and the categories of parties with whom we share their information. Right to opt-out of sales: As permitted by applicable law, we may share your personal information for monetary or other valuable consideration (under California law, this is considered a “sale”). You may opt-out of such a “sale” of your personal information to third parties. You can exercise your right to opt-out buy following instructions in Section 5 (“OPT OUT”). Right to be free from discrimination: Users may freely exercise these rights without fear of being denied goods or services. Currently, this law specifically applies to California residents. If you are a resident of California, and would like to exercise one of your rights, please contact us at info@rapidresponseonline.com. You may designate an authorized agent to request the exercise of one or more of these rights on your behalf. Please note all consumer requests are subject to verification and there may be circumstances where we do not honor your request, as permitted under the law. We may verify your request by asking for additional information about how you found out about Rapid Response Marketing, LLC., who referred you to Rapid Response Marketing, LLC., to make a request (which Publisher, Querier or Partner referred you to us) and which websites you made the same requests to; and we will need to be able to verify with that Publisher or Partner as to the validity of your request first. If you are using an authorized agent, such requests are subject to the same criteria. B. California’s “Shine the Light” Law Additionally, through California’s “Shine the Light” law, California residents who provide personal information in obtaining products or services for personal, family, or household use are entitled to either:
(1) a list detailing the categories of information shared and the entities to which such information was provided; or
(2) to be notified of a mechanism by which a consumer may opt-out of having their information shared with third parties.
16. MISCELLANEOUS.
a. Entire Agreement . This Agreement (as defined above) and Insertion Order constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties whether written or oral. This Agreement shall prevail over any Advertiser Insertion Order or terms and conditions unless such Agreement expressly references this Agreement by name and is signed by the Parties. Notwithstanding the foregoing, in the event of a conflict between this Agreement and Insertion Order with respect to terms governing the duration of the Services, Fees, invoicing and payment terms, the terms of the Insertion Order shall prevail solely for those terms. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in this Agreement or an applicable Insertion Order.
b. Independent Counsel. 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.
c. Choice of Law/Dispute Resolution/Jury Trial Waiver. The Agreement will be governed and construed in accordance with the laws of the state of Nevada without giving effect to conflict of laws principles. Prior to initiating any proceeding in connection with a dispute arising under this Agreement or any Insertion Order, the Parties agree to spell out their dispute(s) in writing and then have a telephone or video conference between senior personnel from both parties to see if an amicable resolution can be reached. The state and federal courts of Clark County, Nevada shall have exclusive jurisdiction over any dispute arising under this Agreement or any Insertion Order and the parties agree to submit to exclusive jurisdiction and venue of such courts and waive any objection based on forum non conveniens.
In the event of any dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed (including instances in which RRM settles a consumer complaint arising from Affiliate’s activities), the prevailing party (which includes RRM as the settling party) shall be entitled to recover its reasonable attorneys' fees and costs, whether incurred before suit, during suit, or at the appellate level, including all attorneys' fees and costs incurred in litigating entitlement to attorneys' fees and costs, as well as all attorneys' fees and costs determining or quantifying the amount of recoverable attorneys' fees and costs. The reasonable costs to which the prevailing party is entitled shall include all costs that are taxable under any applicable statute, rule, or guideline, as well as all non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable under any applicable statute, rule, or guideline.
ANY CAUSE OF ACTION BY AFFILIATE ARISING OUT OF OR RELATING TO THE APPLICATION OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION AROSE OR WILL BE FOREVER WAIVED.
EACH PARTY TO THE AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THE AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT, CAMPAIGN, OFFER, THE INSERTION ORDER(S), OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
d. Severability. 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. Affiliate may not assign the Agreement without the prior written consent of RRM. The Parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and assigns.
e. Independent Contractors. The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party.
f. No Assignment. Except in connection with a merger, acquisition, or sale of all or substantially all of Affiliate’s assets related to this Agreement, Affiliate may not assign this Agreement and its rights and obligations hereunder, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect. All obligations of the Parties herein shall be binding upon their respective successors or assigns.
g. Restrictive Covenants Independent. Each restrictive covenant set forth in this Agreement shall be construed as a covenant independent of any other covenant or provision of this Agreement between the Parties, and the existence of any claim or cause of action against RRM, whether predicated upon another covenant or provision of the Agreement or otherwise, shall not constitute a defense to the enforcement by RRM of any other covenant or this Agreement.
h. No Waiver. The failure of either party at any time to require performance of any provision shall not waive or affect the right at a later time to enforce any provision. Section headings are for reference purposes only and in no way affect the meaning or interpretation of this Agreement. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in this Agreement or an applicable SOW.
i. Force Majeure. Under no circumstances shall RRM be liable for any failure to perform or delay in performance due to maintenance, upgrades, repairs or other measures designed to protect the Services; or (ii) factors beyond RRM’s reasonable control including without limitation telecommunications failures or force majeure events such as acts of a governmental body in its sovereign capacity, war, fire, floods, strikes, pandemics, epidemics, quarantine restrictions, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes or unusually severe weather; in each case so long as RRM provides commercially reasonable notice of such event. If such unavailability materially affects RRM’ ability to provide the Service in whole or in part for more than ten (10) consecutive days, Affiliate shall be entitled to terminate this Agreement upon written notice to RRM.
j. Notice. Any notice required or permitted under this Agreement must be in writing and must be sent via (i) an overnight delivery service or (ii) via email, facsimile or postal mail (“Notice Channels”) so long as confirmation is also sent using a separate Notice Channel (e.g., a notice sent via email must have a confirmation sent via facsimile or postal mail). Notice shall be considered to have been given on the date it was sent. Email notification as long as “NOTICE” or “LEGAL NOTICE” appears in the subject line of the email and the email is set up to show a delivery confirmation. For purposes hereof, notices shall be sent to the addresses listed in the Insertion Order.