These Terms of Service govern your participation in and/or use of certain services or features of Elite-Calls.com, a website owned and operated by Rapid Response Marketing, LLC (the "Site", RRM","Rapid Response Marketing", "we" or "our"). By participating in or using the services or features of the Site, you ("you", "your", "Publisher", or "Traffic Buyer") are agreeing to be bound by these terms of service ("Terms of Service").

Advertiser & Publisher Agreement Definitions

DEFINITIONS. When used in the Agreement, the following capitalized terms, whether singular or plural, are defined as follows:  

“Action”, “Lead”, or “Conversion” means the occurrence of any qualified action, event or occurrence, which triggers an Advertiser’s obligation to pay RRM a fee or commission, and triggers RRM’s obligation to pay Publisher a Fee or any portion thereof, as further described in the Insertion Order(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 specifically identified in the Insertion Order(s) that may pertain to a type of marketing campaign.

“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 Insertion Order(s).  Advertisers bid on and purchase calls and/or leads (Actions) generated by the Network’s publishers in accordance with the terms of the Advertiser Agreement.  RRM facilitates payment from Advertisers, to those Publishers for the Actions they generate that are purchased by the Advertiser. 

“APP Install” means a mobile application install advertisement that offers a direct click to a mobile application store, such as Google Play, Apple, or iTunes). 

“Call-Verified Leads” means a method of promotion or advertising where a prospective consumer has provided some or all their information through a website, landing page, or application in response to an advertisement, and then the prospective consumer provides answers to qualifying questions over the telephone during a verification call made by the Advertiser.

Campaign” means the unique combination of the Advertiser and the Advertiser’s Offer(s) aimed at selling, marketing or promoting an Advertiser’s products or services as more specifically described in the Insertion Order(s), and which serves as the basis for Network Publishers to acquire prospective consumers to an Advertiser’s website, products or services.

“Conversion Optimization” means revisions or changes made to a website or landing page to improve the ranking and positioning of the page on search engines.

“Creative”, “Ad”, “Advertisement” or “Content” means the advertising and creative third-party content provided, created, or developed by the Advertiser or Publisher, that is published by the Network Publishers.  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. 

Cost Per Action,” “Cost Per Lead,” “CPA” or “CPL” is a type of marketing campaign and payment model whereby the Advertiser pays RRM a Fee for each Action delivered by RRM Network Publishers, as defined in the Insertion Order(s), RRM facilitates payment from Advertisers to those Publishers for Actions they generate that are purchased by the Advertiser.

“Display” means a type of advertising that is located on websites, and may consist of wide range of formats and contain text, images, flash, video, and audio.

“DPPS” means a method of promotion or advertising by direct print publication services. 

“DRTV” means “Direct Response Television,” such as infomercials or short-form commercials and advertisements on television that allow consumers to directly respond to an advertiser. 

“E-Mail” means electronic mail, and serves as a method of promotion or advertising that is transmitted via electronic mail, whether in HTML or text format, that will direct recipients to an Advertiser’s landing page or website.

“Fee” means the amount due to RRM which is then paid to the Network Publisher by RRM for providing the Services, subject to the Advertiser and Publisher Agreements, which may be generated by a particular Action in accordance with the Insertion Order(s). RRM facilitates payment from Advertisers, to those Publishers for the inbound calls/leads (Actions) they generate that are purchased by the Advertiser. 

“Geo” means the scope and geographical area that applies to a PPC marketing campaign, as set forth in the Insertion Order(s).

“Host & Post” or “White Labeling” means method of promotion or advertising that involves a Publisher hosting the Advertiser’s forms on the Publisher’s own website, which then posts or sends data to the Advertiser. Host and post method allows Publishers to collect leads on the Publisher’s own website or landing page and pass the consumers to the Advertiser.

“Incentivized” means a form of advertising where a 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.

“Insertion Order(s)” or “IO” means the written Publisher or Advertiser Insertion Order form that is incorporated into and governed by the Terms. The Parties may enter into multiple Insertion Order(s), and all existing and future Insertion Orders shall be governed by the Terms. 

“IVR” means an interactive voice response system and technology that allows a computer to digitally interact with an individual through the use of voice and DTMF tones inputted via a keypad, such as a telephone, which is described in the Insertion Order(s).  

Laws” means all applicable laws, statutes, ordinances, regulations, and legal guidelines in every jurisdiction in which Publisher conducts business, including, without limitation, those related to the unfair, fraudulent, false or deceptive advertising, cybersquatting, infringement of intellectual property, privacy, and publicity rights, 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 Publisher 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, the FTC's Telemarketing Sales Rule, the Federal Reserve Board's Regulation E, Federal Communications Commission regulations and guidelines, including Mobile Marketing Association guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, all as amended from time to time.

“Live Transfer” means a method of promotion or adverting where a Publisher takes telephone calls from a consumer or lead, and then transfers the consumer or lead directly to the Advertiser after verifying the consumer’s or lead’s information in accordance with the Terms and the Insertion Order(s).

“Mobile” means a method of promotion or advertising offer to be displayed on mobile communication devices.

“Offer” means the particular advertising offer, website, or landing page for the Advertiser’s products or services associated with a Campaign, which may described in the Insertion Order(s).  

Pay Per Call” or “PPC” is a type of marketing campaign and payment model whereby the Advertiser pays RRM a Fee for each qualified inbound call (Action), delivered by the Network Publishers and which is then paid to the Network Publishers, as further defined in the Insertion Order(s).  RRM facilitates payment from the Advertisers, to those Publishers for the inbound calls (Actions) they generate that are purchased by the Advertiser.

“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 publishers (“Publishers”) who have signed up for the RRM network.  RRM facilitates payment from Advertisers, to those Publishers 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.  Publishers 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 Publishers 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 Invoca.

“Publisher” or Affiliate” 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.

“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.

“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.

Advertiser Terms and Conditions

1.      PAYMENT, CLAIMS OR DISPUTES, AND REFUNDS

  1. Calculation of Fees. Advertiser shall pay RRM for the Services in accordance with the designated Campaign type, e.g. PPC or CPA, and associated Fee listed in the Insertion Order(s) for each applicable Action generated by the Network Publishers over the course of the Campaign. RRM shall track all applicable Actions for Advertiser's Campaign, and Advertiser shall pay for all Actions tracked by RRM. Campaign statistics and data compiled by RRM including, but not limited to, data, numbers and calculations regarding Actions (collectively "Campaign Data"), will be tracked and calculated by RRM through the use of industry standard tracking technology and shall be final and binding on Advertiser. Advertiser shall not modify or otherwise interfere with RRM's tracking methods in any way. Additionally, Advertiser shall maintain all records and track all Actions for Advertiser's Campaign, which, upon request by RRM, shall be provided to RRM to verify the total number of Actions applicable to the Campaign. In that case, Advertiser shall be responsible for the greater of the Actions tracked by RRM and Advertiser. Any questions, objections, or complaints regarding the Campaign Data must be submitted by Advertiser in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Campaign Data will be deemed to be accurate and approved by Advertiser, which shall be used to determine the Fee due from Advertiser.

 

  1. Cap. If expressly set forth in the Insertion Order(s), RRM may place a cap or limit on the amount of Actions or other Services provided to Advertiser by RRM (the "Cap"). The amount of such Cap shall be expressly set forth in the Insertion Order(s), and may be requested by the Advertiser or set by RRM, in RRM's sole and absolute discretion. If Advertiser wishes to modify or lift the agreed upon Cap after the execution of the Insertion Order(s), Advertiser shall notify RRM of its desire to lift or modify such Cap in writing, and the Parties shall execute a new or amended Insertion Order(s) specifying the new Cap in order for the Cap to become effective on the Campaign. If no Cap is set forth in the Insertion Order(s), then there shall be no limit on the Services, including, but not limited to, the number of Actions and associated Fees due to RRM.
  1. Budget. If expressly set forth in the Insertion Order(s), Advertiser shall pay all Fees for the Services in advance and in full (the "Budget"). The amount of the Budget shall be listed in the Insertion Order(s), and Advertiser shall pay RRM the Budget immediately upon Advertiser's execution of the Insertion Order(s).

 

  1. Payment Terms. Advertiser is responsible for all Fees due to RRM and Advertiser authorizes RRM to deduct such amounts from any pre-funded Budget, advance payment or deposit if applicable. Should the Fees generated by Advertiser's Campaign pursuant to Section 3(a) of these Terms exceed the applicable pre-funded Budget, advance payment or deposit, RRM shall issue invoices to Advertiser. Advertiser shall pay all invoiced amounts on or before the due date listed in each of RRM's invoices. Advertiser shall timely submit payment for all Fees due to RRM for the Services in accordance with the Insertion Order(s), the due dates on all RRM invoices, and these Terms. Advertiser shall make all payments hereunder by cash, cash equivalents, credit card, wire transfer, check, ACH Debit, 'efund,' Automatic Recurring ACH Debit, or by any other payment method agreed to by the Parties in writing, and in US dollars. Advertiser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Advertiser shall reimburse RRM for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys' fees. In addition to all other remedies available under the Agreement or at law (which RRM does not waive by the exercise of any rights hereunder), RRM shall be entitled to suspend or terminate the Campaign and the performance of any Services if Advertiser fails to pay any amounts when due hereunder. Advertiser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with RRM, whether relating to RRM's breach, nonperformance, or otherwise.
  1. Automatic Recurring Payment.  At any time prior to or during a Campaign, RRM may require that Advertiser, and in such case Advertiser agrees to, complete an Authorization form ("Authorization") expressly authorizing RRM to the process automatic, recurring, and instant withdrawals of funds from Advertiser's designated financial or credit account to satisfy any and all ongoing prepayment and/or payment obligations of Advertiser to RRM under these Terms and/or any Insertion Order(s). By completing the Authorization, Advertiser authorizes RRM to automatically deduct such payments from a bank account (ACH), credit card, or other financial or credit account, and Advertiser hereby provides RRM express permission to make use of the form of payment elected in the Authorization. In the event that automatic billing is declined, expired, or returned, RRM may automatically process any previously used automatic billing or account on file that was successful. If any payment is declined, charged back, or fails for any other reason, Advertiser shall reimburse RRM for all charges incurred by RRM as the result of any failed payment, in addition to satisfying Advertiser's payment obligations for the Services. RRM may suspend its performance of all Services until these charges are reimbursed. Advertiser agrees that Advertiser shall indemnify, defend and hold RRM harmless for any error by Advertiser, RRM or any financial institution with respect to any such deductions or charges. RRM reserves the right to reject or terminate Advertiser's participation in the Automatic Recurring Payment at all times in RRM's sole discretion.

 

  1. Billing Information.  Advertiser agrees to provide RRM with accurate billing and contact information, and Advertiser agrees to update this information within fifteen (15) days of any change to it. RRM shall not be liable to Advertiser or to any third party for any claim resulting from Advertiser's neglect or failure to provide accurate billing and information as requested by RRM or required under these Terms.
  1. Claims or Disputes. Advertiser shall timely submit in writing any claims or disputes it may have with respect to the Services or any charge to Advertiser's account, to RRM within seven (7) days of such claim, dispute, charge, or invoice; otherwise Advertiser shall have forever waived any such claim or dispute, and/or such charge or invoice will be final and not subject to dispute.

 

  1. Refunds. Advertiser acknowledges that Advertiser's obligations to pay RRM for the Services are not contingent upon the overall success of the Advertiser's Campaign. All funds paid or due to RRM by Advertiser for the Services are nonrefundable.
  1. Credit Approval. RRM may require a Credit check from Advertiser at RRM's sole and absolute discretion. Advertiser hereby consents to all such credit checks by RRM, and Advertiser shall provide RRM with all information, and take all further actions reasonably required by RRM in order to carry out all credit checks, including but not limited to completing RRM's standard credit check form. RRM reserves the right to suspend and/or cancel the Services, and/or terminate the Agreement immediately, without further notice to Advertiser, upon Advertiser's refusal to abide by the terms of this Section 3(f).

 

2.      ADVERTISER'S RESPONSIBILITIES, REPRESENTATIONS, WARRANTIES, AND COVENANTS. 

  1. Creatives. Advertiser and/or Publisher shall at all times create, develop, and be solely responsible for, all Creatives for an Offer or Campaign. Under no circumstances shall RRM be responsible for providing, developing, creating, or determining the accuracy, validity, appropriateness, or legality of Advertiser's or Publisher's Creatives, as well as Advertiser's products or services that are being marketed through the Services. 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 Publisher 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 Publisher'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.
  2. Compliance.  Advertiser represents, warrants, and promises that all of Advertiser's own products and services, Creatives, Offer, and Campaign(s) shall at all times comply with all Laws. Additionally, Advertiser 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. Advertiser acknowledges and agrees that RRM shall not have the ability to control, oversee, supervise, monitor, or manage Advertiser's products or services that are the subject of the Campaign, 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 Advertiser's actions or inactions with respect to the Services being provided, and as a result, Advertiser shall rely solely upon its own independent legal counsel, experts, and compliance consultants to ensure Advertiser strictly complies with all applicable Laws at all times. Therefore, Advertiser 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 creating, developing, or publishing Creatives, prior engaging RRM's Services, and prior to marketing it products and services through RRM's Network. RRM is relying on Advertiser's material representations, warranties, and promises contained in these Terms, and Advertiser agrees that RRM shall not be liable, and Advertiser shall indemnify, defend and hold RRM harmless, for any violation of these Terms or Laws in any way related to the Services, Creatives, and Campaign(s).
  3. Authority. Advertiser represents and warrants that Advertiser 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; Advertiser has the full right, power and authority to enter into the Agreement and to perform its obligations hereunder; Advertiser 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 Advertiser to all terms of the Agreement; and when executed and delivered by Advertiser and/or Advertiser's representative, these Terms will constitute the legal, valid and binding obligation of Advertiser, enforceable against Advertiser in accordance with its terms.

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:

  1. pay RRM for all outstanding amounts then due and owing in accordance with the terms of the Agreement; and

 

  1. Continue to perform its obligations under the provisions of the Agreement, which are to expressly survive, or that may reasonably be expected to survive, termination or expiration of the Agreement.

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. .

  1. Non-Disclosure. It is anticipated that the Parties may disclose or deliver certain trade secrets, proprietary information or data, and/or Confidential Information, as defined herein, belonging to them, their Advertisers, Publishers, customers, or affiliates, to each other during the term of this Agreement. “Confidential Information” includes, but is not limited to, all proprietary or business-sensitive information, whether oral, written, graphic, machine-readable or tangible form, and whether or not registered, and including all notes, plans, records, documents, computer programs and software and other evidence thereof, including without limitation all: methods, know-how, strategies, patents, patent applications, copyrights, trademarks, trade names, service marks, trade secrets, customer lists, pricing policies, operational methods, marketing plans or strategies, procurement and sales activities or methods, promotion and pricing techniques, credit and financial data, campaign data, and other information, data and documents now existing or to be created by the Parties, regardless of whether any of such information, data or documents qualify as a “trade secret” under applicable federal or state law. The Parties wish to ensure that the information so exchanged is treated by them in the strictest confidence, and the Parties agree to treat all information they receive from the other Party  in the strictest confidence from third parties, unless either Party has the written consent of the other Party to disclose their respective “Confidential Information.” Accordingly, the Parties agree not to disclose any Confidential Information to any unauthorized person and promise not to use any Confidential Information for any purpose other than in connection with the subject matter contained in the Agreement. Upon termination or expiration of the Agreement for any reason, with or without cause, upon written request, the Parties shall immediately surrender and turn over to the other Party all proprietary and Confidential Information in their possession. "Confidential Information" does not include any information that becomes generally known to and available for use by the public, or was previously known to the recipient of the Confidential Information, other than if the disclosure is because of any unauthorized or wrongful conduct, or by any acts or omissions of the recipient of the Confidential Information.

 

  1. Procedure. If either Party becomes legally compelled to disclose to any third party any Confidential Information belonging to the other Party, including without limitation by way of a court order, subpoena, or civil investigation demand, the Party that is being compelled to disclose any Confidential Information (the “Recipient”) shall provide the other Party: (1) prompt written notice, no more than five days from its receipt of any request, of such request for disclosure so that the other Party may seek, at its sole cost and expense, a protective order or other remedy prior to such disclosure; and (2) reasonable cooperation and assistance, at the other Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure, prior to such disclosure by the Recipient. If, after providing such notice and assistance as required herein, Recipient remains required by law to disclose any Confidential Information, Recipient shall disclose no more than that portion of the Confidential Information which, on the advice of Recipient’s legal counsel, Recipient is legally required to disclose, and, upon the other Party’s request, Recipient shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information shall remain confidential and protected from disclosure.

 

  1. Injunctive Relief.The Parties recognize that each Party has legitimate business interests to protect and as a consequence, each Party, and its principals, agree to the restrictions contained in the Agreement because they further each Party’s legitimate business interests. The Parties acknowledge and agree that damages in the event of a breach or threatened breach of the covenants contained above in the Agreement will be difficult to determine and the non-breaching Party will not have an adequate remedy at law, and therefore the Parties agree that they may, in addition to seeking actual damages, seek specific enforcement of the covenants set forth in the Agreement in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction, without notice and without the necessity of a bond. The Parties agree that the covenants in the Agreement are reasonable, including without limitation the period of time, scope, and geographical area. However, should any court determine that any provision is unreasonable, the Parties agree that the covenants should be interpreted and enforced to the maximum extent such court deems reasonable under applicable law. The Parties’ obligations contained in this Section shall survive the termination of the Agreement for any reason.
  1. NON-CIRCUMVENT. Publisher recognizes that RRM may have proprietary relationships with its, Advertisers and Publishers agrees not to circumvent RRM's relationships with RRM’s Advertisers or Publishers, or to otherwise solicit, purchase, contract for or obtain Services similar to the Services performed by RRM hereunder from any of RRM’s Advertisers or Publishers that are known, or should reasonably be known, by Advertisers or Publishers have such a relationship with RRM. Notwithstanding the foregoing, to the extent that Advertisers or Publishers can show that any such Advertisers or Publishers already provided such Services to Publisher prior to the date of the first Insertion Order(s) executed by the Parties, then Advertisers or Publishers shall not be prohibited from continuing such relationship. Advertisers or Publishers agrees that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that RRM 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.

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.


Publisher Terms and Conditions


1.      APPROVAL OF PUBLISHER. Publisher acknowledges and agrees that Publisher must obtain official approval from RRM before Publisher may become an approved Publisher 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, Publisher 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 Publisher. Publisher 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 Publisher, receive Fees, and in order to maintain an active Publisher status with the Network, unless otherwise expressly agreed to in the Insertion Order(s), Publisher must at all times meet the following criteria:

       i.    Publisher may be required to submit the completed and executed Insertion Order(s) for the applicable Campaign(s) or Offer(s), which includes the Offer Parameters, Method of Promotion/Advertising, Budget Amount, information related to Publisher, and other Offer Restrictions, information or instructions.

       ii.    Publisher may be required to submit the completed Publisher Record Form, Publisher Payment Terms form, and Direct Deposit Form, and maintain updated contact and payment information at all times with RRM.

       iii.    Publisher 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;

       iv.    Publisher must have the full right, power and authority to enter into the Agreement and to perform its obligations under the Agreement; Publisher 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 Publisher to all terms of the Agreement;

       v.    Publisher shall comply with all Laws, as defined herein;

       vi.    Publisher shall not provide any form of Incentivized traffic unless RRM provides prior written approval;

       vii.    Publisher shall not to in any way modify, alter, misrepresent or exaggerate the Offer or any part of the Offer.

       viii.    Publisher’s Website, Publisher's E-mails, and all Creatives shall contain legitimate content, substance and material, not simply a list of links or advertisements;

       ix.     Publisher’s Website, Publisher'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);

       x.     Publisher’s Website, Publisher'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;

       xi.     Publisher’s Website, Publisher's E-mails, and all Creatives shall not contain spawning process pop-ups and exit pop-ups;

       xii.     Publisher’s Website, Publisher'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;

       xiii.     Publisher’s Website, Publisher's E-mails, and all Creatives shall not contain offensive, bogus, fake, false, unfair, deceptive, untruthful, unsubstantiated, fabricated, fraudulent, or misleading negative options, reports, claims, news sites, claims of independent testing or results, consumer comments, testimonials, medical advice, approvals or recommendations;

       xiv.    Publisher’s Website, Publisher'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);

       xv.    Before sending any E-mails, Publisher 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. Publisher shall produce such records to RRM immediately upon RRM's request, and Publisher shall be obligated to download and comply with all suppression lists as such lists are updated on the Network Site(s).

       xvi.    If You are marketing and promoting an Offer through a Call Center, You shall (i) provide all Call Center telephone scripts and recordings associated with any Offer immediately upon RRM’s request; (ii) comply with the TCPA Compliance Agreement as set forth in Exhibit A attached hereto; (iii) upload to RRM’s compliance tracking and monitoring system all telephone calls recorded by You that are associated with an Offer; and (iv) ensure that all verbal discussions and communications between You 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.

RRM will permit the Publisher 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. Should Publisher 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 Publisher's participation in the Network without notice, effective immediately, which includes, but is not limited to, deactivating and eliminating Publisher's access to the Network, and/or removing any of Publisher's Creatives. In the event of suspension or termination of Publisher, RRM may in its sole discretion cease any future payment of Fees, without any further obligations to Publisher.

2.      SUB-PUBLISHERS.  The Publisher may engage Sub-Publishers to perform the Services, provided that:

(a) Publisher has obtained prior approval from RRM to engage Sub-Publisher(s) and all Sub-Publishers must at all time meet the criteria set forth in Section 2 above;

(b) Sub-Publisher's tracking is set up to track on a Sub-Publisher level allowing RRM to track and verify all Actions;

(c) Sub-Publisher at all times complies with all the terms and conditions that are applicable to Publisher under these Terms and the Insertion Order(s);

(d) Sub-Publisher, 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) Publisher remains solely responsible and assumes all responsibility for the actions or inactions of Sub-Publisher in performing the Services required by Publisher under this Agreement.

At all times, RRM reserves the right to approve or reject any Sub-Publisher and may revoke a prior approval of any Sub-Publisher at any time and for any reason. Publisher 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-Publishers, 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 Publisher's Sub-Publisher, notices to the Publisher shall be deemed adequate notice to that Publisher's approved Sub-Publisher(s). Publisher agrees that RRM shall never have any obligation to a Sub-Publisher to make any payment to Sub-Publisher, including, but not limited to, the payment of any Fees due for a Campaign, or under this Agreement, and Publisher agrees that even when Publisher utilizes an approved Sub-Publisher, Publisher remains responsible to ensure that each Sub-Publisher 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 Publisher in the event that any of its Sub-Publisher(s) breach the terms of the Offer, or the Agreement.

3.      PAYMENT.

a.      CALCULATION OF FEES. Subject to Publisher's compliance with these Terms, the Insertion Order(s), and Campaign, RRM will pay Publisher 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 Publisher 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 Publisher 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. Publisher acknowledges and agrees that payment of Fees may be delayed where the Publisher has not complied with these Terms and that in no case shall RRM be liable to the Publisher for any loss, costs or expenses directly or indirectly incurred by the Publisher as the result of such delay. In no circumstance will RRM be obligated to pay Fees to a Publisher unless and until the aggregate amount of the Fees due and payable to that Publisher exceeds $100.00, or such greater amount established by RRM or the Publisher, from time to time. Fees due and payable by RRM to a Publisher will not accrue interest. No payments will be made to a Publisher unless and until, where RRM has determined in its discretion, that such disclosure of information is required, that Publisher has provided to RRM a Goods and Services Tax registration number, if the Publisher is a Canadian Resident and a registrant for the purposes of a Goods and Services Tax. Payments to a Publisher in accordance with this Section will be based solely upon the records kept by RRM and tracked or reported in RRM's online reporting system, from time to time.

b.      PAYMENT TERMS.  Publisher will invoice RRM on a monthly basis at the payout rates agreed to by the Parties in the Agreement. 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 Publisher within thirty (30) days of the Invoice Date, unless otherwise agreed to in writing. All payments made to Publisher do not include, and Publisher 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.

4.      TRACKING.   RRM will track all Actions for each Campaign in real time, and will verify all Actions delivered by Publisher in order to calculate the Fees due to Publisher 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 and shall be final and binding on Publisher. Publisher shall not modify or otherwise interfere with RRM's tracking methods in any way. Any questions, objections, or complaints regarding the Campaign Data must be submitted by Publisher in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Campaign Data will be deemed to be accurate and approved by Publisher, which shall be used to determine the Fee due to Publisher.

5.      RESPONSIBILITIES, REPRESENTATIONS, WARRANTIES, AND COVENANTS. 

a.      Creatives.  Publisher 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 Publisher's use and distribution. The Publisher shall be solely responsible for the method by which the Creatives are published and distributed. Under no circumstances shall RRM be responsible for providing, developing, creating, or determining the accuracy, validity, appropriateness, or legality of Advertiser's or Publisher'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 Publisher 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 Publisher'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.      Compliance.  Publisher represents, warrants, and promises that all of Publisher's Services, Creatives, and Campaign(s) shall at all times comply with all Laws. Additionally, Publisher 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. Publisher acknowledges and agrees that RRM shall not have the ability to control, oversee, supervise, monitor, or manage Publisher'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 Publisher's actions or inactions with respect to the Services being provided, and as a result, Publisher shall rely solely upon its own independent legal counsel, experts, and compliance consultants to ensure Publisher strictly complies with all applicable Laws at all times. Therefore, Publisher 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 Publisher's material representations, warranties, and promises contained in these Terms, and Publisher agrees that RRM shall not be liable, and Publisher shall indemnify, defend and hold RRM harmless, for any violation of these Terms or Laws in any way related to the Publisher's Services, Creatives, and Campaign(s).

c.      Authority. Publisher represents and warrants that Publisher 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; Publisher has the full right, power and authority to enter into the Agreement and to perform its obligations hereunder; Publisher 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 Publisher to all terms of the Agreement; and when executed and delivered by Publisher and/or Publisher's representative, these Terms will constitute the legal, valid and binding obligation of Publisher, enforceable against Publisher in accordance with its terms.

6.      LICENSE. RRM grants Publisher 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 Publisher also maintains its own network of publishers, such Publisher may not provide the Network to its publishers, without the prior written consent of RRM. Under such conditions, Publisher will require its publishers 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 Publisher fails to adhere to the foregoing requirements, in addition to any other remedies available to RRM, Publisher shall forfeit its rights to any amounts owed by RRM to Publisher and be subject to immediate termination. Publisher acknowledges and agrees that Publisher 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). Publisher may only access the Network Site(s) via web browser, e-mail or in a manner approved by RRM. Publisher 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, Publisher 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 Publisher shall be terminated by RRM, Publisher 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 Publishers.

7.      FRAUD AND DISPUTES. RRM grants Publisher 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 Publisher also maintains its own network of publishers, such Publisher may not provide the Network to its publishers, without the prior written consent of RRM. Under such conditions, Publisher will require its publishers 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 Publisher fails to adhere to the foregoing requirements, in addition to any other remedies available to RRM, Publisher shall forfeit its rights to any amounts owed by RRM to Publisher and be subject to immediate termination. Publisher acknowledges and agrees that Publisher 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). Publisher may only access the Network Site(s) via web browser, e-mail or in a manner approved by RRM. Publisher 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, Publisher 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 Publisher shall be terminated by RRM, Publisher 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 Publishers.

8.   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. Upon termination or expiration of these Terms, for any reason, Publisher 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.

9.   NON-DISCLOSURE AND CONFIDENTIALITY.

  1. Non-Disclosure. It is anticipated that the Parties may disclose or deliver certain trade secrets, proprietary information or data, and/or Confidential Information, as defined herein, belonging to them, their Advertisers, Publishers, customers, or affiliates, to each other during the term of this Agreement. "Confidential Information" includes, but is not limited to, all proprietary or business-sensitive information, whether oral, written, graphic, machine-readable or tangible form, and whether or not registered, and including all notes, plans, records, documents, computer programs and software and other evidence thereof, including without limitation all: methods, know-how, strategies, patents, patent applications, copyrights, trademarks, trade names, service marks, trade secrets, customer lists, pricing policies, operational methods, marketing plans or strategies, procurement and sales activities or methods, promotion and pricing techniques, credit and financial data, campaign data, and other information, data and documents now existing or to be created by the Parties, regardless of whether any of such information, data or documents qualify as a "trade secret" under applicable federal or state law. The Parties wish to ensure that the information so exchanged is treated by them in the strictest confidence, and the Parties agree to treat all information they receive from the other Party in the strictest confidence from third parties, unless either Party has the written consent of the other Party to disclose their respective "Confidential Information." Accordingly, the Parties agree not to disclose any Confidential Information to any unauthorized person and promise not to use any Confidential Information for any purpose other than in connection with the subject matter contained in the Agreement. Upon termination or expiration of the Agreement for any reason, with or without cause, upon written request, the Parties shall immediately surrender and turn over to the other Party all proprietary and Confidential Information in their possession. "Confidential Information" does not include any information that becomes generally known to and available for use by the public, or was previously known to the recipient of the Confidential Information, other than if the disclosure is because of any unauthorized or wrongful conduct, or by any acts or omissions of the recipient of the Confidential Information.

 

  1. Procedure. If either Party becomes legally compelled to disclose to any third party any Confidential Information belonging to the other Party, including without limitation by way of a court order, subpoena, or civil investigation demand, the Party that is being compelled to disclose any Confidential Information (the "Recipient") shall provide the other Party: (1) prompt written notice, no more than five days from its receipt of any request, of such request for disclosure so that the other Party may seek, at its sole cost and expense, a protective order or other remedy prior to such disclosure; and (2) reasonable cooperation and assistance, at the other Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure, prior to such disclosure by the Recipient. If, after providing such notice and assistance as required herein, Recipient remains required by law to disclose any Confidential Information, Recipient shall disclose no more than that portion of the Confidential Information which, on the advice of Recipient's legal counsel, Recipient is legally required to disclose, and, upon the other Party's request, Recipient shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information shall remain confidential and protected from disclosure.

 

  1. Injunctive Relief. The Parties recognize that each Party has legitimate business interests to protect and as a consequence, each Party, and its principals, agree to the restrictions contained in the Agreement because they further each Party's legitimate business interests. The Parties acknowledge and agree that damages in the event of a breach or threatened breach of the covenants contained above in the Agreement will be difficult to determine and the non-breaching Party will not have an adequate remedy at law, and therefore the Parties agree that they may, in addition to seeking actual damages, seek specific enforcement of the covenants set forth in the Agreement in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction, without notice and without the necessity of a bond. The Parties agree that the covenants in the Agreement are reasonable, including without limitation the period of time, scope, and geographical area. However, should any court determine that any provision is unreasonable, the Parties agree that the covenants should be interpreted and enforced to the maximum extent such court deems reasonable under applicable law. The Parties' obligations contained in this Section shall survive the termination of the Agreement for any reason.

10.   NON-CIRCUMVENT. Publisher recognizes that RRM may have proprietary relationships with its, Advertisers and Publishers agrees not to circumvent RRM's relationships with RRM's Advertisers or Publishers, or to otherwise solicit, purchase, contract for or obtain Services similar to the Services performed by RRM hereunder from any of RRM's Advertisers or Publishers that are known, or should reasonably be known, by Advertisers or Publishers have such a relationship with RRM. Notwithstanding the foregoing, to the extent that Advertisers or Publishers can show that any such Advertisers or Publishers already provided such Services to Publisher prior to the date of the first Insertion Order(s) executed by the Parties, then Advertisers or Publishers shall not be prohibited from continuing such relationship. Advertisers or Publishers agrees that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that RRM 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.

11.   INDEMNIFICATION.  Publisher 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) Publisher'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) Publisher's Website, Publisher's E-mails, and all Creatives, or (c) Publisher's negligence, acts, errors, or omissions. Publisher 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 Publisher of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Publisher at Publisher'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. Publisher 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 Publisher 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 Publisher 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.

12.   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.

13.   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 PUBLISHER'S USE OF RRM'S SERVICES OR NETWORK SITE(S). UNDER NO CIRCUMSTANCES SHALL RRM BE LIABLE TO PUBLISHER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY RRM FROM PUBLISHER 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 PUBLISHER, SUB-PUBLISHERS, ADVERTISERS, ONLINE USERS, OR ANY THIRD PARTIES.

14.   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.

15.   NOTICES. All notices shall be sent to the addresses submitted by Publisher 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. The Services are conducted and provided electronically. Therefore, Publisher agrees that RRM may communicate electronically with Publisher with respect to any and all matters relating to the Services.

16.   SURVIVAL. provision of the Agreement reasonably intended by its terms to survive termination or expiration of the Agreement, including, but not limited to, Sections 11, 12, 13, 19, and 20, shall so survive.

17.   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.

18.   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.

19.   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), Publisher 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. Publisher 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 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.

 


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