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