1.1. to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
Counterparts. This Agreement may be executed by facsimile and in counterparts, each of which when so executed shall be deemed to be an original and all of which These Terms of Service (“Terms”) are applicable to an incorporated by reference into each written authorization to publish certain Ads (as defined herein) (each, an “Insertion Order” and, together with these Terms and the list of prohibited activities (attached hereto as Exhibit A, and referred to herein as the “Prohibited Activities,” the “Agreement”) entered into by the company identified therein (the “Company”) and InsideResponse LLC (“InsideResponse”) and set forth the respective rights and obligations of Company and InsideResponse. To the extent that these Terms are in conflict or inconsistent with an Insertion Order, the Insertion Order shall control. Each of the Company and InsideResponse may be referred to herein as a “party” and collectively as the “parties.”
2.1. “Ad” means an individual advertisement provided through the Advertising Services.
2.2. “Advertiser(s)” means any Company integrated with the InsuranceClicks Platform providing Ads to InsideResponse to facilitate the provision of the Advertising Services.
2.3. “Advertising Services” means the services offered by InsideResponse through the InsuranceClicks Platform, which may include the placement of Ads on the Sites, or the transfer of Calls or Leads. Unless and until Company and InsideResponse agree otherwise, the Advertising Services hereunder shall consist solely of the delivery by InsideResponse of Results from its Advertisers through the InsuranceClicks Platform and the delivery by an Approved Publisher of Clicks from End Users who select such Results.
2.4. “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by or is under common control with that party.
2.5. “Approved Publisher” means a third party publisher that Company has identified to InsideResponse in writing with the intent to utilize the Advertising Services on websites owned or controlled by such publisher, and that InsideResponse has not objected to in writing.
2.6. “Call” means a phone call (a) received by Company or initiated by Company in full compliance with the TCPA and all other Applicable Laws; (b) from or to an individual who has made an affirmative indication of interest in being connected by phone to an Advertiser for the purpose of obtaining relevant products or services; (c) that is successfully transferred to an Advertiser and (d) that is not terminated prior to the number of seconds following such transfer required by the Advertiser (as set forth in the InsuranceClicks Platform).
2.7. “Click” means an End User that is redirected to the URL provided in an Ad after clicking on that Ad while visiting a Site.
2.8. “Company” means the publisher executing this Agreement.
2.9. “Company Content” means any content served to End Users of the Sites that is not provided by InsideResponse.
2.10. “Company Marks” means the Company’s trade names, trademarks, service marks, logos and other distinctive brand features.
2.11. “Confidential Information” means information disclosed by (or on behalf of) one party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances in which it is presented. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party without violating a confidentiality obligation of such third party.
2.12. “End Users” means individual human end users of a Site.
2.13. “Guidelines” means any guidelines and technical protocols applicable to the Advertising Services as provided by InsideResponse to Company from time to time, in writing or by posting in the InsuranceClicks Platform.
2.14. “Intellectual Property Rights” means all copyrights, moral rights, patent rights, trade marks, rights in or relating to Confidential Information, trade secrets and any other intellectual property or similar rights (registered or unregistered) throughout the world.
2.15. “Lead” means valid contact and other information submitted in full compliance with the TCPA by End Users visiting Sites, with the intent of receiving information about applicable products and services.
2.16. “InsuranceClicks Platform” refers to all Advertising Services wherein Advertisers who have written agreements with InsideResponse are allowed to compete, through bidding or any other means, for Clicks, Calls, Leads or any other authorized form of Ads supplied by Company.
2.17. “Results” means an Ad or set of Ads delivered in response to a Request.
2.18. “Results Page” means any Site page that contains any Results.
2.19. “Request” means a request from Company to InsideResponse for Ads.
2.20. “Sites” means the website or websites owned or controlled by Company or by Approved Publishers.
2.21. “TCPA” means the Telephone Consumer Protection Act, 42 USC 227, and the FCC’s Implementing Rules and Regulations including, without limitation, 47 CFR 64.200.
2.22. “Term” means, subject to any termination effected in accordance with Section 11.2, the Initial Term plus the Renewal Terms, if any.
3. Implementation and Maintenance of Advertising Services.
3.2. During the Term, InsideResponse will make available and Company may implement and maintain the Advertising Services on any or all of the Sites. InsideResponse will, upon receiving a Request sent in compliance with this Agreement, provide Results when available. Company will then display the Results on the applicable Site.
3.3. Company will ensure that it (a) is the technical and editorial decision maker in relation to each page, including Results Pages, on which the Advertising Services are implemented; and (b) has control over the way in which the Advertising Services are implemented on each of those pages.
3.4. Company will ensure that the Advertising Services are implemented and maintained in accordance with the Guidelines; as may be updated or amended by InsideResponse from time to time. Company shall not engage in any of the prohibited activities outlined in Exhibit A attached hereto (the “Prohibited Activities”).
3.5. InsideResponse reserves the right to refuse or take down any Ads or refuse to permit Ads to be placed on any Site; provided, however, InsideResponse shall promptly provide Company notice of any of the foregoing. In the event of material changes (including, without limitation, to the theme, content or third party material appearing on a Site), InsideResponse may withdraw approval of any Site.
3.7. Company will have access to an online reporting interface via the InsuranceClicks Platform. Company acknowledges that all data in the InsuranceClicks Platform is initially preliminary and may change as each month is closed out; provided, however, that InsideResponse shall provide Company, via electronic transmission through the InsuranceClicks Platform or otherwise, with a final statement of account for the fees owed to InsideResponse and to Company, as applicable, for the immediately preceding month on or before three (3) days after month-end. Except as required to generate and collect on Invoices, all such reports are for internal use of Company only.
4. Policy and Compliance Obligations.
4.1. TCPA Compliance. Leads may only be provided hereunder if they are collected in full compliance with the requirements of this Section 3.1. Furthermore, Calls may only be transferred hereunder if (1) the End User called Company or a Company Affiliate, or (2) Company or a Company Affiliate called the End User as a result of a Lead that was in full compliance with the following:
(a) Leads shall be obtained only from individuals who have solely and specifically indicated their interest in obtaining a quote for or information about the type of products and/or services indicated in the Lead.
(b) Leads shall be collected only after notification is provided to the End User that (i) the information is being collected for the purpose of providing product and/or service quotes, and (ii) the End User may be contacted by third party advertisers in the specific field that the End User is interested in, and who are identified on or in connection with the collection of the Lead.
(c) Leads shall be collected in compliance with all laws, rules, regulations, and/or regulatory guidance applicable to Company or the applicable Affiliate (collectively the “Applicable Laws”) including, but not limited to, TCPA the Do Not Call Implementation Act (15 U.S.C. §§ 6101 -6155), and the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM” Act of 2003) and in a manner that will authorize an Advertiser or its agents to call any telephone number contained in the Lead for the purpose of selling Advertiser’s products and/or services, including but not limited to through the use of an automatic telephone dialing system, send SMS messages to any mobile telephone number provided in a Lead, and send electronic mail to any e-mail address provided in a Lead.
(d) Lead Data shall be collected only from individuals who have provided their express written consent prior to the collection. Upon request by InsideResponse, Company shall promptly provide proof of each Lead’s written consent, which shall include:
(i) images of the notification and consent language appearing on sources from which the Lead was solicited and/or collected;
(ii) the IP address of the source of any Lead that was solicited or collected via a website; and
(iii) a date and time stamp indicating when the Lead was collected.
(e) Company shall utilize and maintain record keeping systems sufficient to conclusively establish that the prior written consent referenced above was sufficiently obtained in accordance with all Applicable Laws. Such records of consent shall be maintained by Company in a reasonably accessible location, for not less than the period required by Applicable Laws, or if no legal requirement exists, for such period as dictated by prudent business practices.
(f) No Lead or portion thereof shall be obtained from third parties who have not agreed in writing that their Lead meets or exceeds each of the criteria in this Section 3.1.
4.2. Company will not allow any use of or access to the Advertising Services through any Site that is not in compliance with the terms of this Agreement. Company will use commercially reasonable efforts to monitor for any such access or use and will, if any such access or use is detected, take all reasonable steps requested by InsideResponse to disable this access or use. If Company is not in compliance with this Agreement at any time, InsideResponse may, with notice to Company, suspend provision of all (or any part of) the Advertising Services until Company implements adequate corrective modifications as reasonably required and determined by InsideResponse.
5. Changes and Modifications.
5.1. InsideResponse may, without prior notice or liability to Company, discontinue or alter any aspect of the Advertising Services, restrict the time the Advertising Services are available, and restrict the amount of use permitted. InsideResponse may also install bug fixes, updates, patches, and other upgrades to the Advertising Services without prior notice or liability to Company. If Company does not approve of any such modification, Company’s only remedy is to discontinue using the Advertising Services.
5.2. If InsideResponse modifies the Guidelines and the modification requires action by Company, Company will take the necessary action no later than 30 days from receipt of notice from InsideResponse. Any modifications to the Guidelines will be generally applied to InsideResponse’s similarly situated customers in the same region who are using the specific service or services impacted by the modification.
5.3. Company will provide InsideResponse with at least 15 days prior notice of any change in code or serving technology that could reasonably be expected to affect the delivery or display of any Results.
6. Intellectual Property.
6.1. As between InsideResponse and Company, InsideResponse owns all right, title and interest in the InsuranceClicks Platform, including future developments and enhancements to the InsuranceClicks Platform. Aside from the license granted herein, InsideResponse does not grant Company any other license, express or implied, and InsideResponse reserves all rights not expressly granted hereunder, including the right to continually evolve the InsuranceClicks Platform and all related technologies. Company will not reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the InsuranceClicks Platform or any portion thereof. Under no circumstances may Company use the InsuranceClicks Platform for any purpose other than as expressly permitted hereby. Except to the extent expressly stated otherwise in this Agreement, neither party will acquire any right, title or interest in any Intellectual Property Rights belonging to the other party, or to the other party’s licensors.
6.2. InsideResponse may include Company Marks in customer lists with Company’s prior written consent. InsideResponse will provide Company with a sample of any such usage upon request.
7. Reporting and Payment.
7.1. InsideResponse will report to Company the fees earned by Company through the Advertising Services. The fee payable for any Click, Call or Lead or other advertising unit shall be as set forth in the InsuranceClicks Platform from time to time and may vary by geography, time and day, and other factors related to the End User. For all Advertising Services provided through the InsuranceClicks Platform, InsideResponse shall pay Company the amount set forth in the InsuranceClicks Platform for each successful action.
7.2. The calculation of fees for Advertising Services due in any given month shall be based on the verified data provided by InsideResponse, which may be filtered to exclude invalid queries, impressions, clicks or other actions, and InsideResponse shall provide Company with the verified data for each month concurrently with transmittal of the invoice as set forth in Section 6.
7.3. All payments hereunder will be made in US dollars, and will be payable to Company or InsideResponse, as applicable, within thirty days after the end of the calendar month in which they were earned.
7.4. Each party is responsible for paying all applicable taxes, including sales, use or other taxes, duties, tariffs, etc. applicable to any revenue received by such party as a result of the Advertising Services.
8. Warranties; Disclaimers.
8.1. Each party warrants that (a) it has full power and authority to enter into this Agreement; and (b) entering into or performing under this Agreement will not violate any agreement it has with a third party.
8.2. Except as expressly provided for herein and to the maximum extent permitted by applicable law, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER IMPLIED, STATUTORY, OR OTHERWISE AND DISCLAIMS, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT.
9. Indemnification. Each party agrees to indemnify, defend and hold harmless the other party, its affiliates and their respective members, managers, directors, officers, employees, shareholders and agents (and successors, heirs and assigns) from and against any and all third-party actions, claims, liabilities, damages, losses and expenses (including reasonable attorneys’ fees and costs and out-of-pocket costs) (collectively, “Claims”) to the extent arising out of or related to any breach of this Agreement by such party. In addition, Company agrees to indemnify, defend and hold harmless InsideResponse from any Claims incurred by InsideResponse that (1) Leads were not provided in full compliance with the TCPA and all other Applicable Laws or (2) any Company Content infringes any third party Intellectual Property Right. The indemnifying party’s indemnification obligations are conditioned upon the indemnified party: (i) giving prompt notice to the indemnifying party of the claim or action; (ii) granting the indemnifying party sole control of the defense or settlement of the claim or action (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of, result in any ongoing material liability to or materially prejudice or detrimentally impact the indemnified party in any way and except in the case where defenses or positions of the Company and InsideResponse are inconsistent or conflict); and (iii) providing reasonable cooperation and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the claim or action. THE INDEMNITIES IN THIS SECTION 8 ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
10. Limitation of Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. EXCEPT WITH RESPECT TO (I) ANY BREACH OF CONFIDENTIALITY OBLIGATIONS, (II) INDEMNIFICATION OBLIGATIONS OR (III) PAYMENT OBLIGATIONS, NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE NET AMOUNT THAT PARTY HAS RECEIVED AND RETAINED UNDER THIS AGREEMENT DURING THE 12 MONTHS BEFORE THE CLAIM ARISES; PROVIDED THAT, NONE OF THE LIMITATIONS SET FORTH IN THIS SECTION 9 WILL APPLY TO CLAIMS MADE BY THIRD PARTIES THAT ARE NOT AFFILIATED WITH EITHER THE COMPANY OR INSIDE RESPONSE.
11.1. Neither party will make any public statement relating to this Agreement or Company’s use of the Advertising Services (except as contemplated hereunder for InsideResponse to engage advertisers) without the other party’s prior written approval.
11.2. The terms of this Agreement are the Confidential Information of each party (not to be disclosed by the other without the written consent of the other) and data regarding the performance of the Advertising Services are Confidential Information of InsideResponse. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. Breach of the confidentiality obligations set forth in this Section 10.2 may cause irreparable damage to the disclosing party and therefore the disclosing party will have the right to seek equitable and injunctive relief without the need to post a bond or other security, and to recover the amount of damages (including, without limitation, reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use, in addition to any other rights it may have in law or equity.
12. Term and Termination.
12.1. The term of this Agreement commences on the Effective Date and continues for a period of one year (the “Initial Term”), after which time the Agreement shall automatically renew for successive one year terms (each, a “Renewal Term”) until terminated in accordance with Section 11.2.
12.2. Either party may terminate this Agreement, for any reason, upon sixty (60) days written notice to the other party. In addition, either party shall have the right to terminate this Agreement, immediately upon notice to the other party, if the other party (i) breaches any material term of this Agreement, and fails to cure such breach within thirty (30) days of receipt of written notice of such breach from the other party; (ii) becomes insolvent, is unable to pay its debts as they mature, or makes an assignment for the benefit of its creditors; (iii) is the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (iv) becomes the subject of any involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
12.3. Upon the expiration or termination of this Agreement for any reason:
(a) all rights and licenses granted by each party will cease immediately;
(b) if requested, each party will use commercially reasonable efforts to promptly return to the other party, or destroy and certify the destruction of, all Confidential Information disclosed to it by the other party;
(c) all payments earned hereunder prior to expiration or termination shall be paid in accordance with Section 6.
13.1. Compliance with Laws. Each party will comply with all applicable laws, rules, and regulations in fulfilling its obligations under this Agreement.
13.2. Notices. All notices to InsideResponse will be in writing and delivered to 9800 Metcalf Ave., Floor 2, Overland Park, KS 66212, or via e-mail to email@example.com. All notices to Company shall be in writing and delivered to the physical or e-mail address provided by Company as part of the InsuranceClicks Platform online publisher sign up process. Either party may change its address by delivering written notice in accordance with this Section 12.2. Notice will be deemed given (a) when verified by written receipt if sent by personal courier, overnight courier, or mail; or (b) when verified by automated receipt or electronic logs if sent by email.
13.3. Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party; provided, however, that either party may assign this Agreement without the consent of the other party to any Affiliate of such party or in connection with a sale of all or substantially all of its assets or a stock sale, merger or other corporate reorganization resulting in a change of control of such party. The rights and obligations of the parties hereto will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns, but only if the assignee agrees in writing to be bound by the terms of this Agreement. Any other attempt to transfer or assign is void.
13.4. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Kansas, excluding those relating to conflict of laws. The prevailing party in any lawsuit or action shall be entitled to reasonable attorneys’ fees, fees and costs of suit, as well as all such fees associated with enforcing any judgment pursuant hereto. For any dispute arising out of or relating to this Agreement, the parties consent to personal jurisdiction in, and the exclusive venue of, the courts in Johnson County, Kansas.
13.5. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
13.6. Entire Agreement; Amendments. This Agreement is the parties’ entire agreement relating to its subject matter and supersedes any prior or contemporaneous agreements on that subject matter. InsideResponse reserves the right to amend, modify, add, or remove portions of this Agreement at any time without prior notice to Company. Any changes to this Agreement will be communicated on this webpage. Questions or concerns should be directed to firstname.lastname@example.org.
13.7. No Waiver. Except as otherwise expressly provided herein, no purported waiver by any party hereto of any breach by the other party of its obligations, representations, warranties, agreements or covenants hereunder will be effective unless made in writing, and no failure to pursue or elect any remedy with respect to any default under or breach of any provision of this Agreement will be deemed to be a waiver of any subsequent, similar or different default or breach.
13.8. Severability. If any provision of this Agreement is found unenforceable, the balance of this Agreement will remain in full force and effect.
13.9. Survival. Notwithstanding the expiration or other termination of this Agreement for any reason, all provisions of this Agreement which by their nature must survive termination or expiration of this Agreement to give effect thereto shall survive such termination or expiration, including the following sections of this Agreement: Section 5 (Intellectual Property), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 10 (Confidentiality) and Section 12 (Miscellaneous).
13.10. Independent Contractors. The parties are independent contractors and this Agreement does not create an agency, partnership, or joint venture.
13.11. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.12. Force Majeure. Neither party will be liable for inadequate performance taken together shall constitute one and the same instrument.
13.13. Additional Terms. Terms contained in any documentation (whether in hardcopy or in electronic form) other than this Agreement, including any correspondence, shrinkwrap, click-wrap, other online terms and conditions, purchase order, and invoices, of InsideResponse that purport to modify or amend the legal rights or obligations of the parties or otherwise conflict with the terms of this Agreement (“Additional Terms”), even if use of InsideResponse’s services, including the InsuranceClicks Platform, requires an affirmative “acceptance” of those Additional Terms before access is permitted, shall be null and void, having no force or effect, and as between such documents, this Agreement shall govern.
Any party using the InsuranceClicks Platform must agree that it will not knowingly engage in any of the following activities, that it will use commercially reasonable efforts to cause its affiliates and Advertisers from engaging in any of the following activities, and that it will take reasonable corrective measures upon discovery that it or any third party engaged by it is engaging in any of the following activities. InsideResponse reserves the right to update this list of Prohibited Activities by written notice to Company at any time.
I. Directly or indirectly generating queries, impressions or clicks on any advertisement through automated, deceptive, fraudulent or other invalid means including, but not limited to, repeated manual clicks, automated query tools or computer generated search requests;
II. Offering incentives to End Users to generate clicks on Results;
III. Modifying, obscuring or preventing the display of Results;
IV. Requesting or displaying any Results other than in connection with a bona fide request from an End User for information related to the type of products or services indicated, including the submission by the End User of data required by Advertisers as indicated in the InsuranceClicks Platform;
V. Creating links to, framing, minimizing, removing or otherwise restricting the full and complete display of any web page intended to be in response to an end user clicking on an advertisement (a “Target Page”);
VI. Redirecting an end user away from any Target Page or providing a version of the Target Page that is different from the page an End User would access by going directly to the Target Page;
VII. Inserting any content between the Site where an advertisement is clicked on and the Target Page or displaying any additional content other than the Target Page (including in separate tabs or windows);
VIII. Displaying advertisements without prior written authorization on error pages, registration or thank you pages or in electronic mail;
IX. Displaying any Results on mobile devices other than Results that are specifically identified by InsideResponse as mobile Results
X. Displaying advertisements on Sites containing content that (a) is obscene, pornographic, profane, fraudulent or libelous, defamatory, abusive or harassing; (b) promotes violence or contains hate speech; (c) infringes upon or otherwise violates the proprietary rights of another entity or (d) advertises or promotes any illegal activity, service or merchandise;
XI. Accessing, launching or activating any advertisements through, or incorporating advertisements in, any applications, software code, or websites other than approved Sites;
XII. Crawling, indexing or otherwise storing advertisements, query responses or Target Pages, or any portions, copies or derivatives thereof
XIII. Implementing any click tracking or other monitoring of Results, other than Company’s own internal tracking for billing and reconciliation purpose;
XIV. Utilizing logos of InsideResponse’s Advertisers and specifically prohibited from using logos of Progressive Casualty Insurance Company and Government Employees Insurance Company (GEICO). In addition, Company and its affiliates must negative phrase match “Progressive”, “Progresive”, “Progressive.com”, “Progresive.com”, “GEICO”, “GIECO”, “GEICO.com”, and “GIECO.com”.