This Publisher Terms and Conditions (“Agreement”), is entered into by and between the registered applicant as set forth on the electronic application (“Publisher”) and InsideResponse, LLC (“Inside Response”). Insider Response reserves the right to make changes to this Agreement at any time and without notice. The latest Agreement will be posted on Inside Response Publisher’s Platform and/or at InsideResponse Publisher Terms of Service . Publisher’s continued use of the Services after such posting shall constitute its consent to such modification. If Publisher does not agree to this Agreement in its entirety, or any subsequent modifications, then Publisher is not authorized to access any services offered by Company.
1. Definitions. In addition to capitalized terms defined elsewhere in this Agreement, in this Agreement:
1.1. “Ad” means a third party individual advertisement provided through the Advertising Service.
1.2. “Advertiser” means a company with whom InsideResponse has a direct relationship to provide Advertising Services.
1.3. “Advertising Services” means the services offered by InsideResponse which may include the placement of Ads on the Sites, operation of InsuranceClicks Platform, or the transfer of Calls or Leads from Publisher to Advertiser as set forth on the applicable Insertion Order.
1.4. “Affiliate” means a third party under written contract with Publishers to provide services required by Publisher pursuant to this Agreement and an applicable Insertion Order.
1.5. “Call” means a telephone communication between an End User to or from Publisher, InsideResponse or an Advertiser in which the End User has affirmatively expressed an interest in being connected by phone to Advertiser for the purpose of obtaining relevant products or services; or that is successfully transferred from Publisher to Advertiser and continues with Advertiser for a pre-agreed number of seconds following such transfer as set forth in an applicable Insertion Order.
1.6. “Click” means an End User that is redirected to the URL provided in an Ad after clicking on that Ad while visiting a Site.
1.7. “Confidential Information” means information disclosed by (or on behalf of) one party to the other party under this Agreement including this Agreement that is marked as confidential, a trade secret or would otherwise be considered confidential under the circumstances in which it is presented within the industry including but not limited to this Agreement, an applicable Insertion Order, consumer data or advertiser data. It does not include information that (a) the recipient demonstrable shows was already known by recipient; (b) that becomes public through no fault of the recipient; (c) that was independently developed by the recipient without use of Confidential Information; or (d) that was lawfully given to the recipient by a third party without violating a confidentiality obligation of such third party.
1.8. “End Users” means individual human end user of a Site.
1.9. “Guidelines” means any guidelines and technical protocols applicable to the Advertising Services as provided by an Advertiser or InsideResponse to Publisher from time to time, in writing or by posting in the InsuranceClicks Platform.
1.10. “Insertion Order” (hereinafter “IO) means a supplemental agreement under which Publisher will deliver advertisements to End Users for and on behalf of InsideResponse and/or an Advertiser. Each IO shall constitute a separate contract between the Parties, which contract shall be deemed to incorporate and include the terms and conditions set forth in this Agreement without further reference. For the purposes of each such contract, the term “Agreement” shall refer both to the terms and conditions set forth herein and the additional terms and conditions set forth in the applicable IO. Each IO shall specify: (i) the campaign start date; (ii) the type(s) of inventory to be delivered (e.g., Call, Lead or Click); (iii) the lead type whether shared or exclusive (if applicable); and (iv) the price(s) for such inventory or if it is a bid. Other items that may be included are: reporting requirements, any special ad delivery scheduling and/or ad placement requirements.
1.11. “InsuranceClicks Platform” means the proprietary software and resulting platform designed and utilized by InsideResponse system through which the Advertising Services are offered.
1.12. “Intellectual Property Rights” means all copyrights, moral rights, patent rights, trade marks, rights in or relating to Confidential Information and any other intellectual property or similar rights (registered or unregistered) throughout the world.
1.13. “Lead” means delivery of valid consumer contact and other information requested by Advertiser or InsideResponse as set forth in an applicable IO. To be a Valid Lead, any phone numbers included in such lead shall have been collected and distributed in compliance with all TCPA requirements including, but not limited to, affirmative written consent by End Users visiting Sites, who have demonstrated the intent of requesting to receive information about applicable products and services by and through a phone call from a listed advertiser or InsideResponse.
1.14. “Publisher Content” means any content served to End Users of the Sites that which content is not provided by InsideResponse.
1.15. “Publisher Marks” means the Publisher’s trade names, trademarks, service marks, logos and other distinctive brand features.
1.16. “Results” means an Ad or set of Ads delivered by InsideResponse in response to an electronic Request from a Site.
1.17. “Results Page” means a web page that contains Results as sent by InsideResponse.
1.18. “Request” means an electronic request from Publisher to InsideResponse for Ads to display on a Results Page.
1.19. “Site” means the URL and resulting website(s) owned or controlled by Publisher as set forth on Exhibit B to this Agreement and any amendment thereto, submitted and approved for use in writing by InsideResponse. All Sites, other than Sites listed on Exhibit B, including Publisher affiliate sites are subject to prior approval by InsideResponse and must be included in Exhibit B as an amendment without further signatory to this Agreement prior to use.
1.20. “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 (together the “TCPA”).
2. Publisher License and Service.
2.1. During the Term, InsideResponse will make available and may implement and maintain the Ads on any or all of the Sites directly. InsideResponse will, upon receiving a Request sent in compliance with this Agreement, provide Results when available. Publisher will then display the Results on Publisher’s Site.
2.2. Publisher 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.
2.3. Publisher will ensure that the Advertising Services are implemented and maintained in accordance with Guidelines; as may be updated in writing by InsideResponse from time to time which may be provided via email or the InsuranceClicks Platform. Publisher shall not engage in any of the prohibited activities outlined in Exhibit A attached hereto (“Prohibited Activities”).
2.4. Additional Sites and Affiliate Sites. Publisher may only utilize the InsuranceClicks Platform in connection with (i) the Sites, (ii) additional Sites approved by InsideResponse in writing, and (iii) websites of affiliates of Publisher approved by InsideResponse in writing (“Approved Affiliates”), which shall hereafter be collectively referred to as “Sites” for all purposes hereunder. Approvals required hereunder may be communicated via email. InsideResponse reserves the right to refuse or take down any Ads or refuse to permit Ads to be placed on any Site in its sole discretion. InsideResponse shall provide Publisher notice of approval and removal of Ads or Sites in a timely manner. 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 at any time in its sole discretion.
2.7. Medicare Compliance. Publisher represents and warrants that it will not explicitly or intentionally generate Medicare Advantage traffic or leads or otherwise utilize Medicare Advantage ad creative (“Medicare Advantage Ad Creative”) without express written approval of the specific creative (e.g., advertisement, landing page, social media, etc.) from the Company. Medicare Advantage Ad Creative is any advertisement or site copy referring to Medicare Advantage or describing the attributes or benefits of the Medicare Advantage product as offered by insurance carriers through the Center for Medicare and Medicaid Services (CMS) even if Medicare Advantage is never referred to specifically. If Publisher violates this representation, the Company shall not pay for such leads generated from such creative. If Publisher cannot identify the specific leads in question stemming from a discovered ad in violation, the Company shall not be obligated to pay for any leads generated from the Publisher in the last 30 days. If the Company has already paid for the leads in question, Publisher shall issue a credit on the next invoice or shall pay the Company the balance owed. This shall be at the Company's discretion. Furthermore, Publisher could be held liable for any fines or damages sustained by Company or its clients resulting from any CMS violations made as a result of Publisher’s actions or failure to comply with this paragraph.
2.8. E-mail Campaigns. To the extent Publisher is sending commercial email advertisements on behalf of InsideResponse or an Advertiser through Inside Response, it must following the following compliance protocols:
(b) Publisher is responsible for knowing the source of its e-mail list. E-mail addresses may not be obtained through the use of a campaign for random generation of e-mail addresses, and/or “scraping” websites or online services. Publishers must have full opt-in data for all recipients in its database.
(c) Publishers must use InsideResponse’s approved “From” and “Subject” lines if provided.
(d) Publisher e-mail may not include falsification of header information, false registrations for domain accounts, e-mail accounts, or IP addresses used in connection with e-mail ads, and retransmissions of an e-mail ad for the purpose of concealing its origin. All sending domains must be accurately and openly registered to Publisher or Publisher must post name, address and suppression link in the footer of the email. Publisher and/or their e-mail delivery providers are prohibited from relaying or retransmitting e-mails from a computer or computer network that was accessed without authorization.
(e) The “To” line must contain the consumer’s e-mail address, “Undisclosed,” or left blank.
(f) Only approved up-to-date Advertisements provided may be used. Publishers may use their own “Subject” lines, content, creative, text copy, “Subject” and “From” lines so long as Inside Response previously expressly approved the same in writing.
(g) Messages containing advertisements or solicitations must identify themselves, as such, and do so by “clear and conspicuous” means.
(h) Publisher must include in each e-mail the physical address and unsubscribe mechanism if provided by InsideResponse. The unsubscribe mechanism must remain in operation for thirty (30) days from the date of the original e-mail transmission.
(i) Publishers must provide a physical address and unsubscribe method which must remain in operation for thirty (30) days from the date of the original e-mail transmission belonging to Publisher in addition to that provided by Inside Response or its Advertiser.
(j) All unsubscribe requests must be adhered to within ten (10) business days from their receipt. Publishers may not sell or transfer an e-mail address once someone has opted out of receiving future communications, whether from the Advertiser, Publishers or globally.
(k) Publisher agrees that prior to mailing any campaign, it will download the most recent suppression file(s) for any particular campaign, and for that campaign, it will suppress all e-mail addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, Publisher agrees that prior to mailing the campaign, it will download the most recent domain suppression list for any particular campaign and for that campaign and will suppress all domains within its database found on such list. Publishers agrees that it will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html from all current data used in all mailings. Publisher further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list, and that domain names contained therein will be removed before sending any mailings.
3. TCPA Policy and Compliance Obligations.
3.1. TCPA Compliance. Leads and/or Calls providing telephone or cell phone numbers shall meet the following requirements:
(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 set forth in the applicable Ad.
(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 applicable laws, rules, regulations, and/or regulatory guidance (“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 the End User’s telephone number as set forth in the Lead for the purpose of selling Advertiser’s products and/or services, through the use of an automatic telephone dialing system, and/or send SMS messages to any mobile telephone number provided in a Lead, and/or send electronic mail to any e-mail address provided in a Lead. Publisher shall make no representation as to Advertiser’s compliance with state registration requirements for telemarketers or state Do Not Call regimes that do not provide an exception for calls requested by an End User.
(d) Lead Data shall be collected only from individuals who have provided their express written consent prior to the collection. Upon request by InsideResponse, Publisher 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) Upon approval of consent language, Publisher shall not make changes to the same including location of the consent language or manner of collection of end user acceptance without notification and further approval by InsideResponse. Change of the language or location of the consent language shall be a material breach of the Agreement and may result in termination and non-payment to Publisher of any fees associated therewith.
(f) Publisher shall create and maintain record keeping systems sufficient to conclusively establish that the prior written consent as required by the Applicable Law was obtained. Such records of consent shall be maintained by Publisher in a reasonably accessible location, for not less than five (5) years.
(g) No Call or Lead or portion thereof shall be provided to or through Inside Response that does not meet or exceed each of the criteria in this Section 3.
3.2. Third Party Compliance. Publisher will not allow any use of or access to the Ads provided by Inside Response through any Site that is not in compliance with the terms of this Agreement or InsideResponse has not provided prior written authorization. Publisher 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 access or use. If Publisher is not in compliance with this Agreement at any time, InsideResponse may, upon notice to Publisher, suspend provision of all (or any part of) the Advertising Services until Publisher implements adequate corrective modifications as reasonably required and determined by InsideResponse.
4. Changes and Modifications.
4.1. By InsideResponse. If InsideResponse or Advertiser modifies the Guidelines and the modification requires action by Publisher, Publisher will take the necessary action no later than ten (10) days from receipt of notice from InsideResponse. Any modifications to the Guidelines will be generally applied to inside Response’s similarly situated customers in the same region who are using the specific service or services impacted by the modification.
4.2. By Publisher. Publisher will provide InsideResponse with at least fifteen (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.
5. Intellectual Property.
5.1. As between InsideResponse and Publisher, InsideResponse owns all right, title and interest in InsuranceClicks Platform and Ads set forth thereon or provided thereby including future developments and enhancements. Aside from the license granted herein, InsideResponse does not grant Publisher 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. Publisher 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 Publisher 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.
5.2. Publisher Marks. InsideResponse may include Publisher Marks in customer lists with Publisher’s prior written consent. InsideResponse will provide Publisher with a sample of any such usage upon request.
6. Reporting and Payment.
6.1. Reporting. InsideResponse may provide access to an online reporting interface through the InsuranceClicks Platform. Publisher acknowledges that all data in the InsuranceClicks Platform is initially preliminary and may change as each month is closed out and as such may not be used for any billing purposes. InsideResponse will provide Publisher, final reporting via electronic transmission through the InsuranceClicks Platform or otherwise agreed upon by and between the parties, on or before fifteen (15) days after the end of each month for the month immediately preceding the report. Publisher shall have three (3) days after reporting is provided to dispute InsideResponse reporting after which the reporting shall be conclusive and final with no further disputes by either party.
6.2. Fees. The fee payable for any Click, Call or Lead or other advertising unit shall be as set forth in an applicable Insertion Order or on InsuranceClicks Platform. Fees may vary by geography, time and day, and other factors related to the End User. The calculation of fees 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 will provide Publisher with the verified data for each month concurrently with transmittal of the reporting.
6.3. Payment. All payments hereunder will be made in US dollars, and will be payable to Publisher as set forth on the applicable Insertion Order or if no time is provided on the applicable Insertion Order, within thirty (30) days following the receipt of an invoice.
6.4. Taxes. 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.
7. Warranties; Disclaimers.
7.1. Warranties. 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 or intellectual property rights of a third party.
7.2. Publisher Warranties. In addition to 7.1 Publisher represents and warrants: (i) all marketing undertaken by Publisher is in conformity with all applicable laws, rules and regulations governing the same and in full compliance with protocols set forth in sections 2 and 3 set forth above; transference of consumer data includes the right to Email, SMS or telemarketing, and the same has been collected with express written consent in compliance with all applicable laws, rules, regulations, and/or regulatory guidance (“Applicable Laws”) including, but not limited to, CAN SPAM ACT, TCPA , the Do Not Call Implementation Act (15 U.S.C. §§ 6101 -6155) and in a manner that will authorize an InsideResponse or its agents or clients to email, text or call the End User’s telephone number as set forth in the Lead for the purpose of selling Advertiser’s products and/or services, through the use of an automatic telephone dialing system, and/or send SMS messages to any mobile telephone number provided in a Lead, and/or send electronic mail to any e-mail address provided in a Lead; (ii) All marketing material is sent or displayed to Recipients who have consented to receive third party solicitations online and such consent either was provided directly to Publisher by the end user or, if Publisher received assurance of such consent from a third party data provider, such assurance is in writing; (iii) Publisher site(s) (which shall include without limitation all networked websites or other media through which Publisher may acquire the rights to display advertising) on which the campaign materials are or will be displayed, the material or content posted thereon (and/or included therein), and the method of delivering advertising hereunder do not violate any applicable governmental law, rule or regulation or any judicial decree or any intellectual property or other proprietary right of any third party and do not contain any content which may reasonably be considered unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent or tortious; and (iv) Publisher will exercise its best efforts to prevent the introduction through data transmission via modem or any other medium or in the performance of any service hereunder, any virus, worm, trap door, back door, or any other contaminant, or disabling devices including, but not limited to, timer, clock, counter, or other limiting routines, codes, commands, or instructions that may have the effect or be used to access, alter, delete, damage, or disable the sites, systems, other software, information, or other property of Insider Response or of the recipients of any advertisement hereunder.
7.3. Disclaimers. 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.
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”) arising out of or related to any breach of this Agreement by such party. In addition, (a) InsideResponse agrees to indemnify, defend and hold harmless Publisher from any third party Claims incurred by Publisher that inside Response’s proprietary technology that provides the Advertising Services, infringes any patent or other third party Intellectual Property Right; and (b) Publisher agrees to indemnify, defend and hold harmless InsideResponse from any Claims incurred by InsideResponse that (1) Clicks, Leads, or Calls were not provided in full compliance with any Applicable Law, including but not limited to, TCPA or (2) any Publisher Content which infringes upon 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 or materially prejudice or detrimentally impact the indemnified party in any way); 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. Any settlement must be approved in writing by both parties. THE INDEMNITIES IN THIS SECTION 8 ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. Limitation of Liability.
9.1. EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, 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.
9.2. 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.
10.1. Each Party shall keep confidential and shall not disclose confidential information of the other Party, and shall not use such information except as required to perform its obligations under this Agreement. Each Party will observe in respect of the confidential information of the other the same standards and practices as it observes for its own confidential information of similar character and importance but in any event not less than commercially reasonable standards and practices. Each Party acknowledges that a breach of this Section 10 would cause the other Party irreparable harm and that the harmed Party shall be entitled to appropriate injunctive relief in the event such breach is threatened or occurs. For the purposes of this Section 8, the following shall not constitute “confidential information”: (i) information in the public domain; (ii) information already known to the receiving Party; (iii) information acquired by the receiving Party from another source without violation of any confidentiality obligation; and (iv) information developed by a Party independently of information received from the disclosing Party.
10.2. Campaign Information and Customer Data. In addition to and without limiting the foregoing, Publishers shall keep confidential and not use or disclose any data pertaining to any campaign (including all information regarding the specific viewing of advertisements, the click-through rates of such advertisements, the number of Lead or Calls generated under this Agreement, and the demographics of users that respond to the advertisements) to any third party, nor permit such third party to use such data to target any offer or communication to end-users or otherwise to solicit end-users. All such data shall be the property of InsideResponse; provided, however, Publishers may use aggregate demographic information once stripped of any personally identifiable user information or InsideResponse specific information. Unless expressly agreed to in writing by Inside Response, Publisher shall not disclose to any third party (in marketing materials or otherwise) that Inside Response is among its clients or the pricing or any other terms and conditions of this Agreement.
10.3 Penalties. Violation of this Section 10 is a material breach of this Agreement and will entitle the non-breaching party to terminate this Agreement and all current IO. The non-breaching party may seek injunctive relief without the necessity of filing a bond or undertaking and may seek injunctive relief without proof of damages in addition to any other remedies available to the non-breaching party.
11. Term and Termination.
11.1. Term. 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.
(a) For Convenience. Either party may terminate this Agreement, for any reason, upon sixty (60) days written notice to the other party.
(b) For Breach. 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; (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; or violation of any Applicable Law.
11.3. 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; and
12. Dispute Resolution.
This Agreement shall be governed by the laws of the United States and the State of Kansas without respect to choice of law rules. The Parties consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. The parties agree to conduct the arbitration in the county of InsideResponse principle office and each party shall bear the costs of such arbitration. The parties specifically waive any international treaties or other international law, which may govern the court or location of resolution of any dispute between them. This provision was a bargained for relinquishment of both parties rights to jurisdiction in their respective states or countries. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. InsideResponse shall be entitled to recover all reasonable costs of collection (including attorney’s fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. The prevailing party in any Arbitration shall be entitled to an award of attorney fees and costs for such arbitration.
13. General Terms.
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 will be in writing and addressed to the address set forth on the publisher application or for Inside Response at 9800 Metcalf Avenue, Floor 5, Overland Park, KS 66221, unless changed in accordance with this Section. 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 facsimile or 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 combined with an applicable Insertion Order or InsuranceClicks Platform term is the parties’ entire agreement relating to its subject matter and supersedes any prior or contemporaneous agreements on that subject matter. Any amendment must be in writing signed by both parties and expressly state that it is amending this Agreement.
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 (Dispute Resolution).
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 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.
13.13. 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 taken together shall constitute one and the same instrument.
13.14. Additional Terms. Unless expressly stated otherwise in an applicable Insertion Order, terms contained in any documentation (whether in hardcopy or in electronic form) other than this Agreement, including any correspondence, shrink-wrap, 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.
13.15. Electronic Signature. Publisher acknowledges and agrees that by clicking on the button labeled “Agree” or such similar links as may be designated by Inside Response to accept the terms and conditions of this Agreement, Publisher is submitting a legally binding electronic signature and is entering into a legally binding contract. Publisher acknowledges that its electronic submissions constitute its agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 ("E-Sign Act") or other similar statutes, PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY COMPANY. Further, Publisher hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
Any party using the InsideResponse Exchange must agree that it will not knowingly engage in any of the following activities, that it will prohibit its affiliates and advertisers from engaging in any of the following activities, and that it will take reasonable corrective measures, including promptly notifying InsideResponse, upon discovery that it or any third party engaged by it is engaging in any of the following activities:
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 (“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 Publisher’s own internal tracking for billing and reconciliation purpose.
InsideResponse reserves the right to update this list of Prohibited Activities by written notice to Publisher at any time.