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Terms & Conditions

Pay Per Activity Terms

These Pay Per Activity Terms (“Terms”), together with the terms set forth on any Insertion Order, Sales Agreement, or Contract that contains a reference to these Terms (“IO”), constitute a legally binding and enforceable services agreement (the “Agreement”) by and between the Contractor and R Marketing, LLC DBA home improvement guide (“R”) as identified on the IO. These Terms shall be deemed incorporated by reference into the IO; provided, however, that if any provision of the IO conflicts with any provision of these Terms, the provision of the IO shall prevail to the extent of the conflict. For purposes of the Agreement, Contractor and Marketing shall be individually referred to as a “Party” or collectively referred to as the “Parties.” Contractor and Marketing hereby acknowledge and agree as follows:

  1. Services. Contractor agrees to accept and pay for, and Marketing agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Marketing shall undertake marketing campaigns on behalf of Contractor (each a “Campaign”) whereby Marketing and/or Marketing’s third-party publishing partners (“Publishers”) will distribute Contractor’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mails, graphic files and similar online media (collectively, “Contractor Creative”) and/or, where applicable and permitted in the applicable IO, Marketing Creative (as defined below). In connection with the Campaigns, Marketing and/or its Publishers shall generate sales, leads, applications, registrations, installations or other consumer actions, as further defined in the IO (collectively, “Leads”) and/or live telephone calls and/or transfers (collectively, “Calls,” and together with the Leads, “Actions”).

 

  1. Creative. Marketing and/or its Publishers shall assist in the development of Creative. The Parties understand and agree that, as between Marketing and Contractor, Marketing is the sole owner and/or licensee of any and all intellectual property rights associated with the Marketing Creative. Notwithstanding the foregoing, Marketing and/or the applicable Publisher(s) shall have sole discretion with respect to the creation of the “subject” and “from” lines used in their e-mailing of any Creative. Marketing reserves the right, in its sole discretion and without liability, to: (a) change any of its Creative specifications at any time; and (b) reject, omit, exclude or terminate any Creative for any reason at any time, with e-mail notice to the Contractor, whether or not such Creative was previously acknowledged, accepted or published by Marketing. Such reasons for rejection, omission or exclusion of Creative include, but are not limited to, where Marketing deems, in its sole discretion, that the Creative, including the applicable products and/or services promoted by such Creative (“Contractor Products”), and any website linked to from such Creative, is/are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Marketing and/or any Publisher.
  2. Placement. The applicable IO may set forth the particular place(s) where Creative may appear and/or be distributed. Contractor agrees that in a case where no points of placement or distributions are set forth in the applicable IO, the Creative may appear at any point of placement and/or distribution that Marketing and/or the applicable Publisher(s) may determine, in their respective sole discretion.
  3. TCPA Compliance. Where Contractor intends to conduct any telemarketing in connection with the Leads generated hereunder, either: (a) the Parties must indicate that the subject Leads will be “TCPA Compliant” Leads as set forth in the IO; or (b) Contractor shall ensure that any and all Contractor Creative contains the requisite disclosures, language and calls to action necessary to obtain each applicable Lead’s “prior express written consent” to receive commercial telephone calls (including robocalls, pre-recorded calls, text messages and/or autodialed calls to mobile telephone numbers) and other marketing communications from Contractor. For purposes of the Agreement, the term “prior express written consent” shall have the same meaning set forth in the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the “TCPA”). Contractor further represents and warrants that it will comply with all record keeping requirements, call hour restrictions, disconnect requirements, prohibitions against contacting facilities and telephonic devices of certain classifications (e.g. mobile and telefax numbers), caller identification, live operator requirements and any and all other provisions of the TCPA and other applicable state and federal laws.
  4. Payments. The rates for Actions shall be set forth in the applicable IO(s). Marketing will invoice the Contractor daily, weekly, or monthly. Unless otherwise set forth in the applicable IO, payment will be due to Marketing within fifteen (15) days of the date appearing on each invoice. If payment is not made in a timely manner, Marketing may, at its option, immediately terminate the Agreement and/or any applicable IO. Interest will accrue on any past due amounts at the rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law. In addition, Contractor shall be liable to Marketing for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Contractor agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Marketing pursuant to Chapter 57 of the Laws of 2008 amending the Minnesota State Tax Law.
  5. Valid Actions/Unaccepted Leads. Marketing shall only bill Contractor for valid Actions delivered by Marketing and/or Marketing’s Publishers to Contractor (“Valid Actions”); provided, however, that, where the applicable Action is a Lead, no prospective Lead shall be considered a Valid Action where: (a) Contractor rejects the Lead within four (4) days of its receipt thereof; and/or (b) Marketing determines, in its sole and reasonable discretion, that such Lead is not a Valid Lead. For purposes of the Agreement, a “Valid Lead” means an individual person that: (i) is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person; and (ii) has submitted information that meets all of Contractor’s criteria/required data fields, as set forth in the applicable IO. Any and all Leads that are not considered Valid Actions shall be deemed “Unaccepted Leads.” The Unaccepted Leads shall be deemed the sole and exclusive property and Confidential Information (as defined below) of Marketing and Contractor shall have no rights in or to such Leads (including the data contained therein). Without limiting the generality of the confidentiality obligations set forth herein, Contractor agrees that it: (A) will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Leads to/with any third-party; (B) will not use the information contained in the Unaccepted Leads on its own behalf in any manner not expressly authorized by Marketing

; (C) will not use the information contained in the Unaccepted Leads to create any interactive on-line, CD-ROM or other derivative product; (D) will not publicly display the information contained in the Unaccepted Leads on the Internet; and (E) will notify Marketing as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Leads and provide reasonable assistance to Marketing in the investigation and prosecution of any such unauthorized use or disclosure. Where the applicable Action is a Call, no prospective Call shall be considered a Valid Call where Marketing determines, in its sole and reasonable discretion, that such Call is not a Valid Call. For purposes of the Agreement, a “Valid Call” shall mean a Call that is not either a Duplicate Call or Fraudulent Call (as those terms are defined below). For purposes of the Agreement, a “Duplicate Call” means a Call from the same consumer or business within the time period identified in the IO, whether or not the call came through the same caller ID. For purposes of the Agreement, a “Fraudulent Call” means a Call submitted by Marketing to Contractor that is the product of incentivized marketing, fraud or manipulation of information on the part of Marketing or any of its Publishers.

  1. Term/Termination. The Agreement shall commence on the Effective Date and continue until terminated as permitted herein. Either Party may terminate the Agreement and/or any IO at any time, upon two (2) business days’ prior written notice. Either Party may terminate the Agreement and/or any IO upon twenty-four (24) hours’ prior written notice, where the other Party materially breaches the Agreement. Upon termination or expiration of the Agreement for any reason: (a) any and all licenses and rights granted to either Party in connection with the Agreement shall immediately cease and terminate; and (b) any and all Confidential Information or proprietary information of either Party that is in the other Party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
  2. Disclaimer of Warranties. THE SERVICES, Marketing CREATIVE, ACTIONS AND ACTION TRACKING CODES PROVIDED BY Marketing UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO(S) ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, Marketing MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Marketing DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE SERVICES, Marketing CREATIVE, ACTIONS AND/OR ACTION TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Marketing HAS NO LIABILITY, WHATSOEVER, TO CONTRACTOR OR ANY THIRD-PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND Marketing DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. Marketing HAS NO LIABILITY FOR CCONTRACTOR’S USE OF, OR INABILITY TO USE, THE APPLICABLE ACTIONS AND Marketing DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT CONTRACTOR’S USE OF THE SERVICES, Marketing CREATIVE AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. Marketing MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES.
  3. Limitation of Liability. IN NO EVENT SHALL Marketing BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF Marketing HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Marketing WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND Marketing’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, Marketing’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO Marketing BY Contractor PURSUANT TO THE AGREEMENT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL Marketing BE RESPONSIBLE OR LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY PUBLISHER UNDER ANY CIRCUMSTANCES.
  4. Representation and Warranties.

Each Party represents and warrants to the other Party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a Party or by which it is otherwise bound; (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each Party, enforceable against each Party in accordance with its terms; and (d) in the performance of its obligations hereunder, it will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the GDPR, Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the TCPA, the Amended Telemarketing Sale Rule, 16 CFR 310 et seq. (“ATSR”), the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, “Applicable Law”). Contractor further represents and warrants that: (i) it has the power and authority to enter into and perform its obligations under the Agreement; (ii) at all times, the Creative, the Contractor Products, any Contractor website linked to from the Creative and Contractor’s marketing activities will: (A) comply with all Applicable Law; and (B) not violate any applicable rights of any third-party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right; (iii) it owns and/or has any and all rights to permit the use by Marketing of the Contractor Creative and, where approved, Marketing Creative; (iv) Contractor has a reasonable basis for any and all claims made within the Creative and possesses appropriate documentation to substantiate such claims; (v) for Leads, the Creative and/or the landing page associated with each piece of Creative where an Action is completed (for example, Contractor’s website page where an end-user is directed when such end-user clicks on the Creative, fills in a registration form or takes a similar action in connection with the Creative) contains a prominent link to Contractor’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to end users regarding Contractor’s use, collection and disclosure of their personal information; (vi) Contractor shall fulfill all commitments made in the Creative; (vii) no Creative is targeted to end-users under the age of eighteen (18); (viii) Contractor is not, nor is Contractor acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control (“OFAC”); and (ix) Contractor is not, nor is Contractor acting on behalf of any person or entity that is, a Specially Designated National (“SDN”), as OFAC may so designate from time to time.

  1. Indemnification. Contractor shall irrevocably defend, indemnify and hold Marketing, its employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving: (a) Contractor’s violation of any Applicable Law, breach of the Agreement or breach of any representation or warranty contained therein; (b) the Creative, Contractor Products and/or Contractor websites; (c) any improper or unauthorized use of the Actions; and/or (d) any claim that Marketing is obligated to pay any taxes in connection with Contractor’s participation hereunder. Marketing shall irrevocably defend, indemnify and hold Contractor, its employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving Marketing’s violation of any Applicable Law, breach of the Agreement or breach of any representation or warranty contained therein.
  2. Confidentiality. For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (a) a Party’s business plans, strategies, know-how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the material terms of the Agreement and/or any associated IOs; (c) with respect to Marketing, the Unaccepted Leads and suppression lists; and (d) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that: (A) is generally available to or known to the public through no wrongful act of the Receiving Party; (B) was independently developed by the Receiving Party without the use of Confidential Information; or (C) was disclosed to the Receiving Party by a third-party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond.
  3. Audit. Contractor agrees that, at all times during the term of the Agreement, and for a period of six (6) months thereafter (the “Audit Period”), it shall maintain accurate books and records relating to Contractor’s use of the Actions as authorized and contemplated hereunder, as well as Contractor’s compliance with Applicable Law and the terms of the Agreement (collectively, the “Audit Items”). Contractor agrees that Marketing, or any designee of Marketing that is legally bound to obligations of confidentiality and non-disc

losure, may conduct, or cause to be conducted, an audit of the Audit Items at any time and from time-to-time during the Audit Period upon ten (10) days’ prior written notice to Contractor. Contractor shall provide all reasonable assistance to Marketing in connection with the audit, including, without limitation, reasonable access to the premises where the Audit Items are maintained, as well as the opportunity to interview and/or depose Contractor’s employees and contractors involved in Contractor’s use of the Actions. Marketing shall bear all costs associated with any audit; provided, however, that if the audit reveals that Contractor has underpaid Marketing, Contractor shall promptly remit the underpaid amount plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law. In the event of a breach of the Agreement or any applicable IO, Contractor shall pay for all costs and expenses, including attorneys’ fees and costs, incurred by Marketing in connection with the enforcement of its rights under the Agreement and/or any applicable IO(s).

  1. Miscellaneous. The Agreement and any IO may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Agreement and any IO shall be binding upon, and inure to the benefit of, the Parties hereto and their respective successors and assigns. The Agreement may not be assigned by either Party without the prior written consent of the other Party, except that Marketing may assign the Agreement and/or any IO without such consent in connection with a merger, consolidation, reorganization, sale of all or substantially all of its assets, or similar transaction. Any attempted assignment in violation of this provision shall be null and void. All notices, requests, demands, and other communications required or permitted under the Agreement shall be in writing and shall be deemed to have been duly given upon receipt, if personally delivered or sent by overnight courier service, or five (5) days after the date of mailing if mailed by registered or certified mail, postage prepaid, return receipt requested, addressed as set forth in the IO, or to such other address as may be designated by either Party in writing in accordance with this provision. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws principles. Any dispute, controversy or claim arising out of or relating to the Agreement or the breach, termination or invalidity thereof that cannot be resolved amicably between the Parties shall be submitted to arbitration in New York, New York in accordance with the rules and procedures of the American Arbitration Association then in effect. Judgment upon any arbitration award may be entered in any court of competent jurisdiction. Nothing in this provision shall limit the Parties’ right to obtain equitable relief, including injunctive relief, in any court of competent jurisdiction in order to enforce the Agreement. The Agreement, including any IO, constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the Parties hereto. No modification, amendment or waiver of any provision of the Agreement shall be effective unless in writing and signed by both Parties. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. In the event that any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The headings herein are for convenience only and shall not affect the interpretation of the Agreement.