Program Application

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    General Terms and Conditions

    This Schedule 1 applies as between Advertiser and Media Partner unless superseded in whole or part by written agreement of the Parties.

    1.    General Terms.
    1.1    Any defined terms used in each EIO shall (unless otherwise stated) have the same meaning as set out in the Agreement or this Schedule 1.  

    2. Intellectual Property and Confidential Information
    2.1 License.  For the purposes only of the Media Partner providing its Services, the Advertiser grants to the Media Partner (and its permitted users) for the duration of each EIO a nonexclusive, non-transferable, world-wide, royalty-free license to use the advertising content (“Creative”) supplied by the Advertiser through the Platform to the extent necessary only for the Media Partner to perform its obligations under each EIO.  

    2.2 Promotional Methods.  Media Partner must promote Advertiser using only those methods approved or prescribed by the Advertiser.  Unless explicitly authorized in an EIO, Media Partner shall not promote an Advertiser using the following means:
    (a) provision of leads obtained other than through intended consumer (“End User”) action (e.g. through the use of phone books, or similar such compilations of personal data); 
    (b) use of fake redirects, automated software, or other mechanisms to generate Actions; or 
    (c) Actions that are caused that are not in good faith, such as those using any device, robot, Iframes or hidden frames.

    If Media Partners intend to use incentives to promote Advertiser and procure clicks, leads or sales, Media Partner is required to notify Advertiser prior to executing an EIO with Advertiser, and Media Partner’s use of incentives must be in a bona fide way.  

    2.3 Misuse of Creative: The Parties acknowledge and agree that if the Advertiser notifies Media Partner of misuse of its Creative by the Media Partner then the Media Partner shall take immediate corrective action. 

    2.4 Intellectual Property:  “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in confidential information and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals).  All Intellectual Property existing prior to the commencement date of each EIO shall belong to the Party that owned such rights immediately prior to such date.  Each Party acknowledges and agrees that it shall not acquire or claim any title to the other Party’s Intellectual Property.  

    2.5 Confidential Information.  "Confidential Information" means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, customers, prices, discounts, and margins.  A party receiving Confidential Information ("Receiving Party") from the other party ("Disclosing Party") agrees to agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same.  The foregoing obligations shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: was already known to it, free of any obligation to keep it confidential; is or becomes publicly known through no wrongful act of the Receiving Party; was received from a third party without any restriction on confidentiality; was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or is approved for release by prior written authorization of the Disclosing Party.  If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law.  Each party shall bear its own legal expenses in connection therewith.

    3. Payouts
    3.1 Tracking Actions and Calculating Payouts:  Unless an EIO states otherwise, all tracking and payment processing facilities in relation to the tracking of Actions and calculation of Payouts shall be provided by Refersion.  Refersion shall aggregate payments due from Advertisers to the Media Partner and make payments to the Media Partner in accordance with each EIO.  If tracking is disabled as a result of the Advertiser’s acts or omissions and the Advertiser continues to receive traffic from the Media Partner then the Advertiser shall be obliged to pay Payouts on a fair and reasonable basis taking into account appropriate factors.

    3.2 Chargebacks:  An Action can be cancelled or returned by the Advertiser (“Chargeback”) if: (a) the Action is incomplete; (b) if a customer has cancelled or returns an Action; (c) if the Action has been made fraudulently or in an otherwise non-bona fide manner; (d) if the Action is carried out by a person who is outside the area serviced by the Advertiser; or (e) if the Advertiser is unable to ship goods to a customer in relation to the Action.  Each EIO shall state the period of time within which the Advertiser may apply a Chargeback.

    4. Representations, Disclaimers and Indemnification
    4.1 Representations and Warranties: 
    (a) Each Party warrants, represents and undertakes to the other Party in relation to each EIO that: 
    (i) it has the full power and authority to carry out the actions contemplated under each EIO;
    (ii) its entry into and performance of its obligations under the terms of the EIO shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party;
    (iii) in relation to all EIOs and at all times in using the Platform it shall comply fully with any and all applicable Laws.

    (b) The Media Partner represents and warrants to the Advertiser that the Services shall be performed in a professional manner and with reasonable skill and care.

    4.2 Indemnification: Subject to Section 4.3, each party ("Indemnitor") shall defend, indemnify and hold the other party and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including court costs and reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of this Agreement and for breach of a third party's Intellectual Property rights, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section.  Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.

    4.3 Limitations of Liability: 
    (a) Nothing below shall operate to exclude or limit liability for which liability cannot be excluded or limited under law (together the "Excluded Losses").
    (b) Except in respect of the Excluded Losses, the liability of each Party to any other Party in contract, tort (including negligence or breach of statutory duty, misrepresentation or otherwise) or for any other common law or statutory cause of action or otherwise arising by reason of or in connection with this Agreement and each EIO shall be limited to the Payouts fees paid by Advertiser to Media Partner through Impact Radius pursuant to EIOs.
    (c) Except in respect of the Excluded Losses, neither Party shall be liable to the other in contract, tort (including negligence) or otherwise for any: any loss of actual or potential profits, contracts or customers; loss of data and undertaking data or other restoration; loss of reputation; any other indirect, consequential, special, punitive, exemplary damages whether arising from negligence, breach of contract or otherwise.

    5. General
    5.1 Waiver of Remedies:  No forbearance or delay by either Party in exercising or enforcing the provisions of this Agreement or an EIO shall prejudice or restrict the rights (whether provided by this Agreement, an EIO or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach.  No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this Agreement, an EIO or at law) and each such right, power or remedy shall be cumulative.

    5.2 Assignment:  Either Party may assign any or all of its rights under this Agreement or an EIO, or transfer or sub-contract any or all of its obligations under this Agreement or an EIO, upon notification to the other Party, subject to the non-assigning Party’s right to terminate.

    5.3 Audit rights:  Each Party agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter.  Copies of such records shall be made available to the other party upon written request.  An officer of the party supplying the records shall certify the authenticity of the copies.  

    5.4 Notices:  All notices which are required to be given under this Agreement shall be in writing.  Notices of termination of an EIO by Advertiser for convenience shall be made via the Platform.  All other notices shall be sent to the postal address or facsimile number of the Party as provided via the Platform, as such address may be updated from time to time.  Any such notice may be delivered personally or by first class pre-paid letter (or by air-mail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail 5 (five) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.  

    5.5 Governing Law and Venue:  Unless the Parties mutually agree otherwise in writing, this Agreement, Schedule 1 and each EIO shall be governed by the laws of the state where an action is filed by either party to adjudicate or interpret this Agreement, on the condition that such an action is brought in an appropriate venue and forum.  A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs.