ReviMedia Publisher Terms and Conditions
These Publisher Terms and Conditions are entered into by and between ReviMedia, Inc. (“ReviMedia”), located at 44 Wall St, Suite 505, New York, NY 10005, and the Publisher identified in the Publisher Insertion Order (“Publisher”)(also individually referred to herein as a “Party” and collectively as the “Parties”). These Publishers Terms and Conditions, together with the Publisher Insertion Order (“IO”), constitute the “Agreement.” The Agreement shall be effective as of the earlier of the Campaign Launch Date listed in the IO, the date of the last signature below, or the date of the last signature on the IO (the “Effective Date”). The Agreement sets forth the Parties’ rights and obligations with respect to the ReviMedia Campaigns identified in the IO. If any term in these Publisher Terms and Conditions conflicts with the terms and conditions set forth in the IO, the IO shall control.
- Definitions: A “Qualified Lead” is a lead (a) based on a user’s genuine interest in receiving a quote for the product or service being advertised, (b) generated by Publishers solely for use by ReviMedia, (c) that passes all validation filters set by ReviMedia, (d) that is posted to ReviMedia in real-time, immediately following a user’s opt-in, (e) from a user to whom Publisher displayed no other related offerings of the same product vertical during the visit in which the lead was generated, and (f) from a user that, to Publisher’s knowledge, has not previously opted in to any marketing program related to the ReviMedia Campaigns. A “Billable Lead” is a Qualified Lead that has not been returned to ReviMedia as a Lead Return. In other words, a Billable Lead is a lead that has been accepted by ReviMedia’s advertising clients and not returned for any specific reason. A “Lead Return” is a lead that has been returned to ReviMedia as a result of, without limitation, fraud, invalid data (disconnected phone number, undeliverable email address, incorrect contact information), duplicate leads, or leads not being delivered in real-time, immediately following a user’s request for a quote. An “Email Amendment” is a modification to this Agreement through email communications between authorized agents of the respective Parties evidencing mutual assent to the modification(s); provided, however, that the subject of such modifications shall be limited to the following terms: (a) Daily Cap, (b) Cost Per Lead, and (c) Campaign Launch Date. Modifications of any other terms must be executed through a separate IO signed by both Parties. A “Daily Cap” is the maximum number of leads ReviMedia will accept for a specific Campaign in one calendar day. Publisher will not be compensated for leads generated in excess of the Daily Cap. A “Campaign” is an online advertising campaign for a consumer product or service offered by ReviMedia and its advertising clients. “Campaign Guidelines” are specifics on how, and how not to promote Campaigns. These include but are not limited to Creative guidelines, restricted keywords for search campaigns, usage of logos. It is important you carefully review these guidelines because at all times Publisher needs to comply with these guidelines, that can be found at http://www.revimedia.com/offer-guideline/. A “Creative” consists of promotional and marketing content, text, artwork, images, graphics, and other materials (e.g., banners, landing pages) provided to Publisher by ReviMedia or developed by Publisher for the purpose of generating Billable Leads. “Incentive Programs” are promotional programs in which users are given points, rewards, eligibility to win a prize, access to premium content, or similar incentives in exchange for participating in ReviMedia’s advertising offers. Incentive Programs are a prohibited form of content under this Agreement.
- Services: Publisher will direct Internet traffic to the Creatives for the purpose of generating Billable Leads for ReviMedia.
- Reporting: Qualified Leads will be reported in ReviMedia’s reporting platform and will be accessible to Publisher through ReviMedia’s affiliate interface. At Publisher’s request, Qualified Leads may also be reported directly to Publishers through post-back URL technology. Lead Returns will be provided to Publisher on or before the 15th day of the month following the month in which the Qualified Lead was delivered to ReviMedia. Lead Return reports will be delivered via email or other mutually agreeable means. The reasons for Lead Returns are available upon request. ReviMedia will exercise commercially reasonable efforts to ensure its affiliate interface and reporting platform remain operational, but in the event that service is disrupted, ReviMedia will provide reporting by suitable alternative means.
- Invoicing and Payment: Publisher will provide monthly invoices to ReviMedia. Publisher’s invoices will be based on the payout rates listed in the IO and the number of Billable Leads, as determined by the number of Qualified Leads reported in ReviMedia’s affiliate interface, offset by any Lead Returns. Measurements or records other than those provided by ReviMedia will not be considered for the purpose of determining amounts owed under this Agreement. Publisher invoices should reflect a credit for any reported Lead Returns not previously accounted for, if any. If the credit balance in any given month exceeds the balance due, Publisher shall pay ReviMedia such credit balance Net 30, end of month, unless otherwise agreed in writing (including by email). ReviMedia shall make all payments to Publisher for invoices in excess of $50 within thirty days of the date the monthly invoice is transmitted to the ReviMedia billing contact listed in the IO. Balances of $50 or less will carry forward until such time as Publisher’s balance exceeds $50. Publisher shall pay all applicable taxes or charges imposed on it by any governmental entity in connection with Publisher’s performance under this Agreement. If Publisher disputes any payment made by ReviMedia, Publisher shall notify ReviMedia in writing (including by email) within ten days of receiving payment; failure to do so will result in waiver by Publisher of any claim relating to such payment.
- Term and Termination: The term of the Agreement will be one year from the effective date of this Agreement. The Agreement will automatically renew thereafter on a month-to-month basis. Either Party may terminate or suspend this Agreement, an IO or a Campaign for any reason by providing the other Party with written notice (including by email); provided, however, that Publishers must give thirty days notice prior to terminating or suspending any Campaign for which a campaign time-frame is specified in the applicable IO. In all events except for a material breach by Publisher, ReviMedia shall remain liable for all Billable Leads generated prior to the effective date of termination. In the event of a material breach by Publisher, ReviMedia may terminate this Agreement and retain all payments then due to Publisher. Upon termination by either Party, Publisher shall cease generation of leads on behalf of ReviMedia and shall remove all Creatives from its systems.
- Audit Rights: Publishers agree that at all times during the term of this Agreement it shall maintain accurate books and records relating to leads generated under this Agreement. Publisher agrees that ReviMedia, or any designee of ReviMedia that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement to examine, inspect, audit, and review all such books, records, and any source documents used in the preparation thereof during normal business hours upon written notice to Publisher at least five business days prior to the commencement of any such examination, inspection, review, or audit. Such audit shall be at ReviMedia’s sole cost and expense and shall be strictly limited to those books and records specifically relating to information regarding the leads generated under this Agreement. Publisher shall immediately pay ReviMedia the amount of any overpayment revealed by any such audit, plus interest calculated at a rate of one and one-half percent (1.5%) per month from the date such overpayment was made until the date of repayment to ReviMedia. Notwithstanding the foregoing, if an audit determines Publisher overbilled ReviMedia by more than five percent, such audit shall be at the sole cost and expense of Publisher.
- Fraud: If Publisher, Publisher’s sub-affiliates, associated service providers, or any other agents of Publisher fraudulently generate leads or inflate lead counts by fraudulent traffic generation (as determined in ReviMedia’s sole reasonable discretion), through deceptive marketing practices, or through automated means, Publisher will forfeit its compensation for all Campaigns in which fraud was determined by ReviMedia, and this Agreement will be subject to immediate termination by ReviMedia.
- Prohibited Content: Publisher will not place Creatives with sites, or include Creatives in emails, that contain or promote (or link to sites that contain or promote) sexually explicit or obscene materials; promote violence, hate, or discrimination of any type based on race, sex, religion, nationality, disability, sexual orientation, or age; or constitute or promote illegal activities; or are deemed to be offensive in nature, degrading, libelous, profane, or in bad taste. Publisher’s (and Publisher’s sub-affiliates’) sites and emails may not contain any material that infringes on the trademark, copyright, or patent of any person or that damages the reputation of ReviMedia, ReviMedia’s brands, including BestQuotes.com, or the reputation of ReviMedia’s advertising Publisher. Further, Publisher and Publisher’s sub-affiliates will not target minors for ReviMedia’s Campaigns and will not provide leads generated through Incentive Programs.
- Approved Creatives: will only run Creatives provided by or approved by ReviMedia. Publishers may not create its own creative assets (including banners or landing pages) or modify ReviMedia’s Creatives without prior approval from ReviMedia.
- Customer Inquiries: Upon request by ReviMedia and in response to a customer inquiry, Publisher agrees to promptly provide full details regarding the source of any lead.
- Proprietary Rights. ReviMedia will own any and all right, title, and interest in and to: (a) ReviMedia’s Creatives; (b) ReviMedia’s reporting platform and affiliate interface; (c) ReviMedia’s data validation filters and lead-distribution technology, and (d) all intellectual property rights (including without limitation copyrights and patent rights) in the foregoing. All data passed to ReviMedia as a Qualified Lead is the sole and exclusive property of ReviMedia and is deemed Confidential Information under this Agreement. Publisher agrees it has no rights in or licenses to any of the foregoing.
- Confidentiality: As used herein, “Confidential Information” shall mean: (a) either Party’s proprietary information; (b) information marked or designated by either Party as confidential; (c) information otherwise disclosed in a manner consistent with its confidential nature; (d) the terms and conditions this Agreement; and (e) information of either Party conveyed to the other Party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by either Party to be treated as confidential. Each Party acknowledges that, as a result of the provision of services pursuant to this Agreement, each Party may disclose Confidential Information to the other Party. Therefore, each Party agrees that it will make no disclosure of Confidential Information without obtaining the other Party’s prior written consent. Additionally, each Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s), or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed under this Agreement. This Section shall survive any termination of this Agreement for a period of three (3) years thereafter. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the recipient can demonstrate with clear evidence that the information: (a) was previously known to the recipient at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the recipient; (c) was rightfully received by the recipient from a third Party who was not bound under any confidentiality provisions; (d) was independently developed by the recipient without reference to or use of the Confidential Information of the disclosing Party or (d) was disclosed pursuant to judicial order, requirement of a governmental agency, or by operation of law.
- Non-solicitation: During the term of this Agreement, and for a one-year period following termination of this Agreement, Publisher shall not employ, solicit the employment of, nor aid any third party in soliciting an employee of ReviMedia.
- Representations and Warranties: Each Party represents and warrants that: (a) the execution, delivery, and performance of this Agreement has been duly approved by its board of directors or managing partners/members, and no further corporate action is necessary on its part to consummate the transactions contemplated by this Agreement; (b) it has the authority to enter into and to be bound by this Agreement and that it will, at all times, comply with this Agreement and all applicable laws in its performance hereunder; and (c) it will comply with all applicable state and federal laws, rules, Federal Trade Commission implementing regulations, international laws, rules and regulations including, but not limited to, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the Children’s Online Privacy Protection Act, the CAN-SPAM Act of 2003, as amended, the Telephone Consumer Protection Act, as amended, the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq., and those governing the National Do Not Call Registry, and all rules and regulations promulgated under any of the foregoing.
- Warranty Disclaimer: EXCEPT AS EXPRESSLY SET FORTH IN SECTION 15 (“REPRESENTATIONS AND WARRANTIES”), THE PARTIES PERFORM ALL SERVICES HEREUNDER ON AN “AS IS” BASIS AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH SERVICES OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- Limitation of Liability: EXCLUDING PUBLISHER LIABILITY PURSUANT TO SECTIONS 7 (”FRAUD”), 8 “PROHIBITED CONTENT”), 9 (“APPROVED CREATIVES”), 13 (“CONFIDENTIALITY”), 11 (“PRIVACY”), AND 18 (“PUBLISHER INDEMNIFICATION”), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA, OR LOST PROFITS, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL REVIMEDIA’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF REVENUE PAID BY REVIMEDIA TO PUBLISHER PURSUANT TO THE APPLICABLE IO UNDER WHICH THE CLAIM AROSE.
- Indemnification: By ReviMedia. ReviMedia agrees to indemnify, defend and hold harmless Publisher, its affiliates, and their respective employees, directors, officers and agents, from any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees)(collectively, “Losses”) due to, arising from, or in connection with any third-party claim, suit, judgment, or proceeding (a “Claim”) alleging (a) any breach by ReviMedia of this Agreement; (b) any wrongful conduct committed by ReviMedia pursuant to or in performance of this Agreement; or (c) that any approved Creatives violate the intellectual property or proprietary rights of a third party, are defamatory or obscene, or violate any law or other judicial action or administrative regulation. By Publisher. Publisher agrees to indemnify, defend and hold harmless ReviMedia, its affiliates, and their respective employees, directors, officers and agents, from any and all Losses due to, arising from, or in connection with any Claim, alleging (a) any breach by Publisher of this Agreement, including, without limitation, display or delivery of any Creative in breach of this Agreement or the terms of an IO; (b) any wrongful conduct committed by Publisher pursuant to or in performance of this Agreement; (c) that materials provided by Publisher, or Creatives provided by ReviMedia and modified by Publisher without ReviMedia’s approval, violate the intellectual property or proprietary rights of a third party, are defamatory or obscene, or violate any law or other judicial action or administrative regulation. Process. Each Party’s indemnity obligations are contingent on the Party seeking indemnity (the “indemnified party”) giving the Party from whom indemnity is sought (the “indemnifying party”) prompt written notice of any such Claim, permitting the indemnifying party sole and exclusive control of the defense and settlement of such Claim with counsel of the indemnifying party’s choosing (although the indemnified party will be entitled to participate at its own expense in the defense of any such Claim), and reasonably cooperating with the indemnifying party in connection with such defense. The indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights or interests without the prior written consent of the indemnified party.
- Violation of Law or Offer Guidelines. In the event Publisher violates Applicable Law or Campaign Guidelines, ReviMedia may demand, chargeback, or setoff, the following liquidated damages: (a) For the first violation, the greater of an amount equal to all sums paid or payable by ReviMedia to Publisher in each month in which the violation was ongoing, or $5,000.00; (b) For the second violation, the greater of an amount equal to twice the sums paid or payable by ReviMedia to Publisher in each month in which the violation was ongoing, or $10,000.00; and (c) For all other violations, the greater of an amount equal to three (3) times the amount paid or payable by ReviMedia to Publisher in each month in which the violation was ongoing, or $25,000.00, and ReviMedia may terminate this Agreement. Both parties acknowledge that the damages resulting from Publisher’s violation of Applicable Law or the Offer Guidelines may not be readily ascertainable at the time of the violation but that the parties reasonably believe multiple violations could result in increasing penalties imposed upon ReviMedia by government authorities and or clients.
- Dispute Resolution: If any dispute arises under this Agreement, the Parties agree to first attempt to resolve the dispute with a mutually agreed upon mediator in New York, New York. Any costs or fees (other than attorneys’ fees) associated with the mediation shall be shared equally by the Parties. If the dispute cannot be resolved through mediation, the Parties agree to submit the dispute to binding arbitration in New York, New York. The Parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. This Agreement will be governed by the laws of the State of New York. A Party that substantially prevails in an arbitration brought under this Agreement is entitled to recover from the other Party its reasonable attorneys’ fees and costs.
- Choice of Law; Attorneys’ Fees: This Agreement is governed by the laws of the State of New York, except that the conflict-of-law provisions of the State of New York will not apply. The exclusive forum for any lawsuit related to this Agreement will be in the state courts in New York City, New York and, to the extent that federal courts have exclusive jurisdiction, in the U.S. District Court for the Southern District of New York. The parties consent to such venue and jurisdiction and agree to waive the personal service of any process upon them by agreeing that service may be effectuated by overnight mail (using a commercially recognized service) or by U.S. Mail with delivery receipt to the last address provided by each party hereto.
- No Assignment: Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
- Independent Contractor: Each Party is an independent contractor. Except as set forth in this Agreement, neither Party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the Party’s prior written consent.
- Severability: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
- Contract Interpretation. For purposes of contract interpretation, including resolution of any ambiguity, the Parties acknowledge this Agreement was prepared jointly and therefore the terms of the Agreement should not be strictly construed against either Party.
- Entire Agreement, Modification: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, negotiations, representations, or promises, written or oral, regarding the subject matter of this Agreement. No modification, course of conduct, amendment (other than a valid Email Amendment), supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the Parties unless made in writing and duly signed by both Parties.
- No Waiver: The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect. Neither Party shall be liable for, or considered in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to payment obligations) as a result of any causes or conditions which are beyond such Party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence; provided that the non-performing Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party.
- Survival: Any obligations which expressly or by their nature are to continue after termination, suspension, cancellation, or expiration of the Agreement shall survive and remain in effect after such occurrence.
- Force Majeure: Neither Party will be liable for, or be considered in breach of or default under this Agreement by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, electrical outages, network slowdowns or outages, failure of third-party-owned communications facilities.
- Agreement in Counterparts: This Agreement may be signed in counterparts; facsimile signatures and electronic signatures shall have the same force and effect as an original signature.
- Notices: All notices and other communications shall be sent by email to the email addresses for ReviMedia and Publisher listed in the IO.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and delivered as of the Effective Date.
This Exhibit 1: Data Program Special Terms (“Special Terms”) hereby incorporates by reference ReviMedia’s Publisher Terms and Conditions. If any term in these Special Terms conflicts with the terms and conditions set forth in the Publisher Terms and Conditions, these Special Terms shall control. If any term in these Special Terms conflicts with the terms and conditions set forth in the IO, the IO shall control.WHEREAS, Publisher procures, compiles, owns, and maintains a proprietary computerized database composed of, among other things, permission-based names, email addresses, source URLs (or unique identifiers representing such source URLs), signup IP addresses, signup time/date stamps, postal addresses, and telephone numbers, and other consumer information (hereinafter the “Data”); and WHEREAS, ReviMedia: (i) has developed, owns, or has the rights to certain technology relating to the distribution of Qualified Leads (as defined in the Publisher Terms and Conditions); (ii) has access to various promotions that will be advertised or marketed through the transmission of commercial email, direct mail prospecting (postal), response marketing (delivered by way of email or pop-under trigger technology), and telemarketing to individuals included in the Data; and (iii) intends to use the Data within various media channels to send certain commercial marketing messages featuring offers and advertisements to consumers, including without limitation, electronic mail, direct mail, response marketing, and telemarketing. WHEREAS, Publisher and ReviMedia wish to engage in the marketing program described in these Special Terms whereby Publisher will furnish ReviMedia with Qualified Leads from consumers (“Consumers”) for use in ReviMedia’s marketing business, upon the terms and conditions set forth below and incorporated herein by reference.
1. License. Publisher hereby grants and ReviMedia hereby accepts a non-exclusive, non-transferable, revocable worldwide license to manage, make use and have access to the Data pursuant to the terms and conditions set forth in this Agreement. Publisher expressly grants a license to cache materials distributed or made available for distribution via the services rendered herein; including content supplied by third parties, and agrees that such caching is not an infringement of any of Publisher’s intellectual property rights or any third party’s intellectual property rights.
2. Data Management and Delivery; Advertiser Sourcing. In consideration of the license grant in Section 1 above, ReviMedia shall provide the following services:
- Upon delivery of the Data to ReviMedia, ReviMedia will import the Data into its delivery system, which will enable ReviMedia to send any Qualified Leads derived from the Data to its third-party advertising clients.
- ReviMedia will use industry best practices to safeguard the Data, but makes no guarantee against third-party conduct not within its control.
- ReviMedia may use, or enable its advertising clients to use, the Data for email, response marketing, telemarketing, and direct mail prospecting. ReviMedia may use the Data to prospect on behalf of itself and third parties, subject to the restrictions contained in this Agreement. ReviMedia may transfer the data to a third-party service provider for the purpose of email message delivery, response marketing, telemarketing, or direct mail prospecting, subject to the restrictions in this Agreement.
- ReviMedia has sole discretion to locate appropriate promotional or advertising campaigns to be delivered to Qualified Leads.
3. Real-Time Pricing; Reporting. Pricing for Qualified Leads will be determined in real-time by ReviMedia, upon delivery of the Data. When the Data is delivered to ReviMedia, ReviMedia’s system will accept or reject the Data. If any Data is rejected, ReviMedia will exercise commercially reasonable efforts to provide Publisher with a rejection code explaining the reason for the Lead Return. Pricing, acceptance, rejection, and any rejection codes will be reported to Publisher in real-time via ReviMedia’s affiliate interface or other suitable means, at ReviMedia’s sole discretion. In the event that ReviMedia does not provide notice of acceptance or rejection of the Data, the Data will be deemed rejected, unless otherwise agreed in writing by the Parties.4. Obligations of Publisher.
- Publisher shall deliver the Data to ReviMedia (i) in the ReviMedia-specified XML format; (ii) via a secure HTTPS transmission; (iii) at a rate of one Qualified Lead per transmission; (iv) at a fixed destination via HTTPS, to be provided by ReviMedia prior to the Campaign Launch Date; and (v) without API mapping errors or business rule errors.
- Ownership of the Data. The Parties expressly acknowledge and agree that title to the Data shall at all times remain exclusively in Publisher. Publisher shall not broker or arbitrage Consumer information owned by third parties to ReviMedia, unless otherwise agreed in writing. ReviMedia may, in its sole discretion, keep such copies of the Data and records pertaining to the Data as may be necessary to demonstrate compliance with laws with respect to its use of the Data.
- Publisher may not market insurance-related products or services to any Data before or after acceptance of such Data as Qualified Leads by ReviMedia.
- Non-Circumvention. During the term of any IO in effect and for a period of 180 days thereafter, Publisher shall not solicit insurance-related lead generation business from ReviMedia’s advertising clients; provided, however, that this prohibition shall not prevent Publisher from maintaining a contractual relationship existing as of the Effective Date of such Insertion Order. If Publisher fails to comply with any requirements set forth in this section, the Parties agree that the resulting damages will be difficult to quantify, and ReviMedia will be entitled to liquidated damages equal to fifty percent of the gross revenue generated by Publisher in violation of this section, in addition to any other remedies ReviMedia may have at law or in equity.
- Suppression Lists. Publisher hereby expressly agrees that prior to providing ReviMedia with any Data, including email addresses, telephone numbers (and mobile numbers, if applicable), postal addresses, Consumer “opt-in” data, registration sources, first names, last names, signup IP addresses, source URLs, signup time/date stamps, and any other personal information, Publisher shall provide an “opt-out” or unsubscribe list (the “Suppression List”) to ReviMedia to the extent that Publisher received such “opt-out” and unsubscribe requests from Consumers via email, website, or other media. By doing so, Publisher expressly agrees that it has “scrubbed” the Data within forty-eight hours immediately preceding delivery of the Data and the Suppression List to ReviMedia. ReviMedia expressly agrees that it will not, at any time, send any commercial marketing messages to any Consumers on the Suppression List and that it will not use the Data in any manner other than for the purposes set forth in this Agreement. ReviMedia shall not obtain any ownership interest or rights in and to any Suppression List.
- To the extent that Publisher subsequently receives, via email, website, or other media, a message from a Consumer that such Consumer wishes to unsubscribe or “opt-out” of receiving any commercial communications, as set forth herein, Publisher shall provide ReviMedia with a list of such “opt-outs” and unsubscribes no more than forty-eight hours after receiving such transmission from a Consumer. Conversely, to the extent that ReviMedia subsequently receives, via email, website, or other media, a message from a Consumer or its third-party agents, that such Consumer wishes to unsubscribe or “opt-out” of receiving any commercial communications, as set forth herein, ReviMedia shall provide Publisher with a list of such “opt-outs” and unsubscribes no more than forty-eight hours after receiving such transmission from a Consumer.
- Any costs or fees incurred by ReviMedia related to allegations of “spam” or any other complaints received by ReviMedia from Consumers, regulatory agencies or otherwise (collectively, “Spam Complaints”) shall be borne exclusively by Publisher, including Spam Complaints that derive from or arise out of any act or omission on the part of Publisher, including, without limitation, issues associated with the right to market to the Data, the manner in which the Data was collected, or where Publisher has failed to scrub the Data, as set forth in this Agreement.
- Approved Creatives. Publisher shall obtain Data only through the use of Approved Creatives, as defined in the Publisher Terms and Conditions.
- The source of the Data (e.g., email, website, etc.) must not use any ReviMedia trade names or trade names associated with ReviMedia, its products, or its affiliates; nor may the source of the Data contain any variation or misspelling of any trade name of ReviMedia or its affiliates. This includes the content of source URLs; for example, domain names such as, without limitation, “bestquotes,” “bestquotes.mydomain.com,” or “facebook.com/bestquotes” are prohibited.
- The Data is obtained, collected, and compiled without employing, for example, email address harvesting, dictionary attacks, and any other deceptive or illegal act or practice.
- The Data was obtained, collected, and compiled using methods that fully comply with all applicable laws, rules, and regulations including, without limitation, the CAN-SPAM Act of 2003, and is comprised solely of information derived from actual consumer responses. The presence of default, or “hard-coded,” data fields will cause the Data to be returned as a Lead Return.
- Publishers will not sell, rent, lease, license, exchange, or otherwise transfer any Data, including any email address contained in Publisher’s Suppression List(s), except as otherwise set forth herein. Publisher will not sell, rent, lease, license, exchange, or otherwise transfer any Data, including any email addresses, telephone numbers, and postal addresses of an individual Consumer or entity that has unsubscribed from receiving future email solicitations, telephone solicitations, and commercial marketing communications from Publisher and ReviMedia, except as otherwise set forth herein.
- The Data sold to ReviMedia pursuant to the Agreement will be collected from individuals who have provided prior express written consent required by law or regulation (including without limitation the Telephone Consumer Protection Act, 42 USC 227 and 47 CFR 64.200, and Do Not Call List requirements), so that ReviMedia or its clients may call any telephone or mobile phone numbers contained within Data for marketing purposes, including without limitation, through the use of an automatic telephone dialing system or prerecorded voice message, and Publisher agrees to provide ReviMedia, upon request from ReviMedia, proof of such express written consent for all Data provided to ReviMedia, which proof will include, in addition to all other information or evidence reasonably requested by ReviMedia, screenshots of the disclaimer and consent language appearing on mediums from which Data was collected, the IP address of the source of the Data, and the date and time stamp indicating the time the Data was collected.
- Publisher will use record keeping systems that can establish that the prior express written consent referenced in Section 5.g. above can be conclusively established under applicable law or regulations, and legally sufficient evidence of such consent will be maintained by Publisher and be made available to ReviMedia upon request at any time, at least until the conclusion of any applicable statute of limitations under applicable law or regulation, including those referenced above.
- Publisher has and will continue to maintain an internal suppression list comprised of individuals who have advised Publisher that they do not wish to receive email solicitations and other commercial marketing communications, and that such list will be updated no later than forty-eight hours following receipt of an unsubscribe request. All Data provided to ReviMedia shall first be scrubbed by Publisher against Publisher’s internal suppression lists. Publishers shall provide to ReviMedia such unsubscribe list to suppress future outgoing emails and other commercial marketing communications to Consumers appearing on such lists.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and delivered as of the Effective Date.