iGain LLC Terms of Insertion Order
These terms and conditions ("Standard Terms"), iGain LLC's ("Vindale") Terms of Insertion Order located at http://www.vindale.com/v/affiliateTerms.jsp shall be deemed incorporated by reference into any insertion order (the "Insertion Order") submitted by the Publisher or its agency identified on such Insertion Order, and shall govern all actions between Vindale and Publisher. To the extent the Insertion Order and the Standard Terms conflict, the Standard Terms shall govern, except for those relating to advertisement scheduling and pricing. All Insertion Orders are subject to acceptance by Vindale. The Standard Terms combined with the Insertion Order shall be collectively known as the "Agreement." Publisher and its agency (if applicable) shall be jointly and severally responsible for all legal obligations under this Agreement. Vindale reserves the right to change the Agreement at any time. In the event that the Agreement is significantly changed, these changes will be posted to the above website. If any changes are made that affect the nature or intent of the Agreement, Publisher will be informed of these changes via email.
- Delivery of Advertisements
- Delivery of Advertisements: Publisher shall deliver Vindale's advertisements ("Advertisements" or "Ads") to members of the Publisher's network, affiliate network and/or email database (the "Service"). Vindale hereby grants Publisher a non-exclusive, worldwide license to copy and distribute the Advertisements through the Service pursuant to this Agreement.
- Creative Control: All messages are subject to Vindale's review and approval. Publisher shall only promote Vindale with advertisements that have been approved by Vindale. All advertising materials distributed by Publisher must be approved by Vindale in writing. In the event that Publisher distributes material that promotes Vindale, and has not been approved by Vindale, Vindale reserves the right to refuse payment and to seek legal damages. Vindale shall have the right, at its sole discretion, to terminate the delivery of any Advertisement at any time without liability to Publisher.
- Reporting: Vindale's Online Tracking reporting shall be the sole and definitive tool used to measure the delivery of Advertisements pursuant to this Agreement. No other measurement or usage statistics (including those of Publisher or an approved third party server) shall be accepted by Vindale, except in the cases of auto-responder lead collection. Vindale reserves the right to scrub fraudulent leads and test leads from final calculation. Vindale shall not be responsible for leads delivered in excess of the Quantity/Cap amount as described on the Insertion Order for this agreement. In the event of a reporting error, the parties agree to make a good faith effort to calculate the actual number of leads delivered.
- Non-Viable Leads: Vindale reserves the right to offset the number of leads delivered by the number of non-viable or duplicate leads delivered under this Agreement. Vindale shall determine in its sole discretion what constitutes a non-viable lead. Without limiting the breadth of the foregoing, non viable leads shall include, but not be limited to, leads with incomplete or invalid contact information (e.g. e-mail address), leads from unsupported countries or territories, and leads from consumers under 18 years of age. Vindale maintains a list of specific e-mail domains that constitute non-viable leads, which will be made available to Publisher upon request. It is the responsibility of the Publisher to insure that the Insertion Order accurately reflects the leads sought.
- Payment: Vindale agrees to pay Publisher for all Viable Leads delivered in accordance with the terms of this Agreement. Publisher agrees to complete and deliver to Vindale an IRS Form W-9. Publisher must send invoices to the Billing Email as set forth in the Insertion Order or Vindale Media, LLC, 210 5th Avenue 8th Floor, New York, NY 10010. Date of payment, as set forth in the Insertion Order, shall be calculated by the date Vindale receives Publisher's invoice. Vindale shall not be responsible for any late penalties made as a result of Publisher's failure to send an invoice in a timely manner. Vindale shall issue 1099's only when it is required to do so. Payment shall be made via check or ACH transfer.
- Term and Termination:
- Term: The term of this Agreement shall be governed by the dates set forth in the Insertion Order. Any extension must be made in writing and approved by both parties.
- Termination: This agreement may be terminated at any time by providing 24 hours written notice to the other party.
- Publisher Representations: The Publisher represents that websites running Vindale's Advertisements will not be associated with or contain any illegal activity, or pornographic, obscene, racist, or hateful content, or deceptive advertising, piracy, libelous or defamatory statements. In its sole discretion, if at any time Vindale deems Publisher's website or advertising activities to be contrary to the terms set out in the Agreement, the Agreement shall be terminated and Publisher shall forfeit any and all commissions and earnings. Publisher must not make misleading or disparaging statements, oral or written, about any Ad, Program or Vindale. Publisher must not generate any leads in bad faith or through fraudulent mechanisms. This includes, but is not limited to, generating own leads using manual or automated processes, generating leads using ad-ware or spy-ware, and encouraging users to cancel any service provided by Vindale.
- Email Spam: In promoting an advertisement via email, Publisher represents that they shall distribute Advertisements only to recipients who have opted-in to receive such emails. Spam shall be defined as email advertisements sent as unsolicited bulk email where recipients have not agreed to receive such emails. Sending such emails shall be considered a breach of this agreement.
- Email Suppression Lists: The parties shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective business including, without limitation, CAN-SPAM act of 2003 and all other laws governing deceptive trade practices and/or online marketing and/or advertising. In the event that advertisements are distributed via email campaigns, Vindale will provide a regularly updated suppression list to Publisher containing current unsubscribe requests in conformance with CAN-SPAM. Publisher agrees to implement the most recent suppression list that Vindale has delivered prior to distributing email campaigns. Publisher also agrees to include a physical mailing address for Vindale in the body of all email campaigns.
- Indemnity: In furtherance of the foregoing, Publisher agrees to indemnify and hold Vindale harmless from and against any losses, costs, damages or expenses (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with (i) Publisher or Publisher's Web Content or (ii) Publisher's breach of any agreement, representation or warranty hereunder, including, without limitation, claims for infringement of copyright or other intellectual property rights and violation of rights of privacy or publicity.
Company agrees to indemnify, defend, and hold harmless Client, its subsidiaries, affiliates, agents, contractors, officers, directors, members, and employees from and against any loss, cost, claim, injury, or damage (including reasonable attorney's fees) arising out of any breach of the Agreement.
- Disclaimer of Warranties: Except as set forth in this agreement, Vindale makes no warranties of any kind, whether express or implied, including but not limited to any implied warranty or merchantability or fitness of particular purpose.
- Confidential Information/Intellectual Property
- Ownership of Data: The results of each campaign shall become the property and ownership of Publisher and Vindale in perpetuity. Any data collected by Vindale for each campaign shall become the sole property and ownership of Vindale in perpetuity.
- Non-Disclosure: The parties agree that throughout the course of this agreement, either party may disclose certain Confidential Information to the other. Confidential Information is defined as any non-public information of a disclosing party including but not limited to business plans, products, technical data, advertising methods, product functionality, services, data, customers, markets, competitive analysis, databases, formats, methodologies, applications and other private information. Each party agrees not to use any Confidential Information disclosed to it by the other party for its own use or for any purpose other than to carry out the purposes of this Agreement. Neither party shall disclose or permit disclosure of any Confidential Information of the other party to third parties or to employees of the party receiving Confidential Information, other than directors, officers, employees, consultants and agents who are required to have the information in order to carry out the purposes of this Agreement.
- Copyright: Vindale reserves all rights to copyrighted material it delivers to Publisher under the terms of this agreement.
- General: Each Party represents and warrants they have full corporate right, power, and authority to enter into this Agreement, to grant the rights and licenses granted and to perform the acts required of it. This Agreement, together with the Insertion Order and any other exhibits or attachments hereto, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties whether written or oral. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed e-mail, or certified mail, return receipt requested, to the address of the receiving party set forth above, or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective upon receipt. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. The parties agree that the relationship between Company and Publisher shall not constitute a partnership, joint venture, employment or agency. No term or condition other than those set forth in the Standard Terms or in the Insertion Order relating to advertisement scheduling and pricing shall be binding on Company unless in writing signed by duly authorized representatives of the parties. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by Publisher, including Publisher's insertion order, and Publisher hereby disclaims any terms therein, except for terms therein relating to advertisement scheduling and pricing.
- Choice of Law: In the event of a dispute, this Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the state of New York. Each party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in New York County, New York. Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding arising out of this Agreement.
- Severability: If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the rest of the Agreement shall be enforceable in accordance with its terms. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
- Amendments: This agreement may not be changed, modified, or terminated, except by an instrument executed by the parties who are or will be affected by the terms of the instrument.
- Assignments: Neither party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
- Force Majeure: Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.