A. GENERAL
This Lead Seller Agreement ("Agreement") is entered into by and between Advertising Results, Inc. (Buyer) and the applicant Company listed as Affiliate on the application (“Seller”) and sets forth the parties’ respective rights and obligations with respect to any advertising campaigns assigned. This Agreement shall be treated as Confidential by both parties, and neither party shall not disclose any of the terms and conditions of this Agreement to any third party without the express prior written consent of the other party.
B. PAYMENT
Both parties to pay the other party on a CPL, CPA or CPCall basis, as set forth on the Lead Sellers Agreement. Time is of the essence as it regards all payment terms in this Insertion Order. Both parties agree that it shall be solely liable for payment to the other party for any leads they purchase from the other party. Further, both parties represent and warrant that it will allow ongoing payments as arranged on all invoices. The failure of either partner to invoice Advertiser shall not constitute a waiver of any amounts due. In the event of Advertiser’s default relating to the timely payment of any invoice, the selling party shall have the right to immediately revisit the terms of this Agreement and/or terminate the Agreement. Advertiser will still be liable for any monies due. Further, in case of dispute or default by the Advertiser, Advertiser agrees to indemnify the seller and pay all damages and costs actually incurred by the seller including, but not limited to, collection agency and attorneys' fees and costs, as a result of having to remedy breach of this Lead Sellers Agreement.
C. REPORTING
Reporting on leads and any other statistics are the responsibility of Advertising Results, Inc. based on Advertising Results' reporting and all invoicing will be based on the counts generated by Advertising Results, Inc. All rates are based on a gross lead or gross sale basis. In the case of discrepancy between Advertising Results, Inc.'s reporting and Seller’s reporting, then both sides will work in good faith to determine the correct amount. For cost per click campaigns, it is acknowledged between the parties once the Advertiser’s pixel fires this triggers a responsibility for payment to the selling party. It is therefore agreed that there may be no scrubs, deductions, or chargebacks of any kind under any circumstance once the pixel fires.
D. PRIVACY
All parties represent and warrant that they are fully compliant with applicable privacy laws, and all federal, state, and/or provincial regulations. All parties shall also provide notice for, and fully disclose, their respective privacy policies and practices to visitors to their website(s).
E. GOVERNING LAW/VENUE
This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Montana, and the parties expressly consent that any dispute arising from or out of, or relating to this Agreement shall be resolved in State or Federal Court, as appropriate, located in Yellowstone County, Montana.
F. TERMINATION
Either party may terminate an Insertion Order for any reason or for no reason by providing the other party with 5 days prior written notice unless stated otherwise on future specific advertising/ insertion order agreements. Either party may terminate an Insertion Order at any time if the other party is in material breach of its obligations under this Agreement and such breach is not cured within five (5) days after written notice thereof from the non-breaching party. In the event of termination by either party for any reason pursuant to an Insertion Order, the selling party shall cease distribution of the Advertising Campaign.
G. MUTUAL INDEMNIFICATION
Both parties agree to indemnify, defend & hold harmless one another from any & all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) asserted by any third party, including governmental entities, due to, arising from, or in connection with: any breach by either party of the terms of this Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed or negligence by either party; all liabilities related to the Campaign described on page 1 of this Insertion Order, any investigation or governmental claim, and/or any intellectual property claims associated with any and all copy & images supplied by both parties and its associated usage thereof.
H. CONFIDENTIALITY
Except as otherwise provided in this Agreement or with the consent of both parties, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Advertising Campaign, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Seller shall not use any information obtained from the Buyer’s affiliate program to develop, enhance or operate a service that competes with the affiliate network, or assist another party to do the same.
I. ENTIRE AGREEMENT
These terms set forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter of this Insertion Order and may be changed only by a subsequent writing signed by both parties. This Agreement is non-exclusive and both parties shall have the right to enter into similar agreements with other third parties. The parties hereby represent and warrant that they shall at all times fully comply with all applicable state, and/or provincial and federal statutes, rules and regulations with respect to their respective businesses including, without limitation and/or provincial laws governing deceptive trade practices, provided such third parties are not competitors of Client. In the event that it is required that Advertising Results, Inc. digitally sign or agree to additional terms when using Client’s affiliate marketing web site, both parties acknowledge and agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered, in order to view stats and or access creative or other campaign materials or details. Therefore, any terms which appear on Client’s website are to be disregarded & deemed as non-effective and shall be superseded by these written Terms & Conditions as signed by both parties.
J. ASSIGNMENT
Neither party may assign, transfer, sub-contract or sublicense, in whole or in part, this Agreement, any Insertion Order or any of its rights or obligations under this Agreement, without the other party’s prior written consent. Any attempt to assign this Agreement other than as permitted above will be considered void and invalid. Subject to the foregoing, the terms of this Insertion Order will be fully binding upon, inure to the benefit of and be enforceable by, the parties’ respective permitted assigns, successors, heirs, executors, administrators and permitted assigns.
K. LIMITATIONS of LIABILITY
ALL SERVICES PROVIDED BY BOTH PARTIES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER PARTY MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ONE PARTY TO THE OTHER SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF ONE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT WILL EITHER PARTY’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR FIVE THOUSAND DOLLARS ($5,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST EITHER PARTY MORE THAN 6 MONTHS AFTER THE DATE UPON WHICH THE CLAIM AROSE. BOTH PARTIES ACKNOWLEDGE THAT THE OTHER PARTY HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BOTH PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
L. NON-CIRCUMVENTION
Both parties mutually recognize that each have existing proprietary relationships with their respective Clients or Vendors. Both Parties mutually agree not to use any information gained solely as a result of this Agreement to purposefully and maliciously circumvent the other Party’s relationship with such Clients or Vendors to make available, provide, contract for or perform marketing services for Clients or Vendors learned of through this relationship. Both parties mutually acknowledge that both Parties may form relationships with their own Clients and Vendors, through their own native sales and marketing activities, and that Publisher and Advertiser may have Clients or Vendors in common.