ReviMedia Advertiser Purchase Agreement
This Purchase Agreement is entered into by and between ReviMedia, Inc. (“ReviMedia”), located at 44 Wall St., Suite 505, New York NY 10005, and the buyer identified in the Insertion Order (“Buyer”) (also individually referred to herein as a “Party” and collectively as the “Parties”). This Purchase Agreement, together with the Insertion Order (“IO”), constitutes the “Agreement.” The Agreement shall be effective as of the earlier of the date of the last signature below, the Campaign Launch Date listed in the IO, 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 Campaigns identified in the IO. If any term in this Purchase Agreement conflicts with the terms and conditions set forth in the IO, the IO shall control.
A “Call” consists of an inbound consumer phone call, meeting the specifications set forth in the IO or elsewhere in this Agreement, driven to the destination phone number provided by the Buyer. IO. Call type (i.e. Click to Call, Transfer etc) will meet specifications set for in the IO or elsewhere in this agreement.
A “Lead” consists of contact information meeting the specifications set forth in the IO or elsewhere in this Agreement that is submitted by a consumer through an online form requesting a quote for the product or service advertised. Leads may include a unique identifier representing the source of the Lead. ReviMedia screens all Leads using proprietary validation filters prior to delivery.
Unless otherwise provided in this Agreement, all Leads remain subject to additional marketing by ReviMedia and ReviMedia’s advertising clients.
An “Exclusive Lead” is a Lead generated by ReviMedia for Lead Buyer’s exclusive use for a period of thirty days from the date of delivery; provided, however, that ReviMedia shall at all times be entitled to market products and services to the Lead other than the product or service for which the Lead was initially generated, at ReviMedia’s discretion.
A “Daily Cap” is the maximum number of leads or calls ReviMedia will generate for a specific Campaign in one calendar day for Buyer.
A “Lead Return” is a Lead that has been returned to ReviMedia on or before the 10th day of the month following the month in which the Lead was delivered to Lead Buyer and which is accompanied by a valid reason for the return(s).
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/Call, (c) Cost Per Sale, (d) Campaign Launch Date, (e) and valid reasons for rejecting or returning Leads. Modifications of any other terms must be executed through a separate IO signed by both Parties.
A “Campaign” is an advertising program for a consumer product or service offered by Lead Buyer.
“Cost Per Call” means the price (agreed upon in advance for Call and Transfer Campaigns) paid by Buyer for Calls. Pricing conditions such as duration may apply and will be specified in the IO.
“Cost Per Lead” means the price (agreed either in advance for Direct-Post Campaigns or in real-time for Ping-Post Campaigns) paid by Lead Buyer for Leads.
“Cost Per Sale” means the price paid by Lead Buyer for Leads that convert into valid sales. Criteria for a valid sale under this Agreement shall be specified in the IO.
A “Creative” consists of promotional and marketing content, text, artwork, images, graphics, and other materials (e.g., banners, landing pages) developed by ReviMedia for the purpose of generating Leads or Calls
A “Marketing Restriction” is a requirement that the Buyer market Leads and/or Calls only through channels specified in the IO.
A “Direct-Post Campaign” is a lead generation campaign in which pricing for Leads is determined prior to the Campaign Launch Date and remains static through the life of the campaign, unless otherwise agreed in writing.
A “Ping-Post Campaign” is a lead generation campaign in which pricing for each Lead is determined in real-time on a dynamic basis through ReviMedia’s lead exchange platform.
ReviMedia will generate Leads and Calls for Buyer, as specified in the IO and elsewhere in this Agreement.
3. Use Restrictions:
Buyer is prohibited from using, retaining, selling, brokering, or marketing any Leads and Calls not purchased by Buyer, Leads and Calls rejected by Buyer and leads returned as a Lead Return. Buyer understands and agrees that Pings, rejected Leads, Lead Returns, and any customer or system information included with any of the preceding are considered ReviMedia’s Confidential Information under this Agreement.
Buyer must comply with all Marketing Restrictions specified in the IO.
Buyer is prohibited from marketing any product or service to a Call or Lead other than the product or service for which the Lead was originally generated. By way of example, and without limitation, if a Lead is generated from a consumer expressing interest in a home security system quote, Buyer may not also market health insurance quotes to that Call or Lead.
Buyer is prohibited from selling or licensing Leads to any party other than a provider of services for the product or service being advertised (i.e., a carrier) or such provider’s direct agent. The practice of “ping-forwarding,” whereby Leads are offered for sale to other buyers, is expressly prohibited.
Buyer may market to Calls, Leads and Exclusive for a period of thirty days from the date of purchase. Buyer must cease all marketing to Calls, Leads and Exclusive at the end of the thirty-day period.
4. Reporting, Post Procedures:
Direct-Post Campaigns. For Direct-Post Campaigns, Leads must be accepted or rejected within 30 seconds of ReviMedia’s posting of the Lead. Rejections must include one of the following rejection reasons: a) unable to monetize; b) invalid contact information; c) duplicate lead; d) other rejection reasons that are approved in writing by ReviMedia.
Ping-Post Campaigns. For Ping-Post Campaigns, ReviMedia will ping Lead Buyer with anonymized Leads so Lead Buyer may evaluate the Lead for potential purchase. Within 15 seconds of receiving the anonymized Lead, Lead Buyer will ping ReviMedia with a bid price. If Lead Buyer’s bid price is acceptable to ReviMedia, the Lead will be posted to Lead Buyer. Leads must be accepted or rejected by Lead Buyer within 30 seconds of ReviMedia’s posting of the Lead. Rejections must include one of the following rejection reasons: a) unable to monetize; b) invalid contact information; c) duplicate lead; d) other rejected reasons that are approved in writing by ReviMedia.
Reporting of Sales (in case of CPA campaigns). Lead Buyer will provide Sales reports to ReviMedia on a monthly basis on or before the 5th of the month following the month in which the sale was generated by Lead Buyer at [email protected].
Lead Details Requests. Upon written request, ReviMedia will promptly disclose to Buyer any information in its system logs relating to specific Leads including IP address, source information, or other information deemed helpful in resolving disputes or escalations.
High Rejection Rates. High rejection rates, as determined in ReviMedia’s reasonable discretion, may result in reduced volume on Campaigns. High rejection rates may also result in termination or suspension of Campaigns. Upon request in writing, ReviMedia will discontinue generating Leads and/or Calls under this Agreement from any source identified by Buyer.
Testing. Prior to activation of a Campaign, the Parties will conduct a series of tests to ensure proper technical integration and mapping. Upon approval by Buyer on the testing process and launch of the live Campaign, Buyer represents that technical integration was successful and all mapping parameters are correct. For avoidance of doubt, by accepting Leads and/or Calls from ReviMedia as described herein, Buyer waives any future claim of improper technical integration or mapping errors.
Reporting of Lead Returns. Month to date Lead Return reports will be provided to ReviMedia on a weekly basis every Friday by 12:00 PM EST (preferably by uploading the files to the login interface, or otherwise emailing to [email protected]). Final monthly Lead Return reports will be provided to ReviMedia on or before the 10th day of the month following the month in which the Lead was delivered to Lead Buyer. Any Lead Returns reported after this time will not be valid and will be invoiced as Leads by ReviMedia. Lead Return reports will provide one of the following reasons for each Lead Return: a) disconnected phone number; b) undeliverable email address; c) invalid contact information; d) consumer claims they did not request a quote for the product or service being advertised; e) other return reasons that are approved in writing by ReviMedia.
Lead Return Verification. ReviMedia will verify all Lead Returns using its proprietary software, third-party validation tools, and follow-up calls from its call center. In the event that ReviMedia determines that any Lead Returns are invalid, ReviMedia will provide Lead Buyer with a detailed report of its findings. Lead Buyer agrees to exercise good-faith efforts to resolve any Lead Returns deemed invalid by ReviMedia.
Scheduled and Unscheduled Maintenance. Lead Buyer will exercise commercially reasonable efforts to ensure its reporting methods remain operational at all times, but in the event that service is disrupted, ReviMedia will re-post any unreported Leads to Lead Buyer at ReviMedia’s earliest convenience, and Lead Buyer will provide reporting feedback on such Leads by mutually agreeable alternative means. Lead Buyer agrees to provide ReviMedia at least two business days notice prior to conducting any scheduled maintenance activities impacting the functionality of Lead Buyer’s reporting methods.
5. Invoicing, Pricing, Payment:
ReviMedia will provide monthly invoices to Buyer, and such invoices will be payable Net 15, end of month.
For Call and Direct Post Campaigns, ReviMedia’s invoices will be based on the payout rates listed in the IO. For Ping-Post Campaigns, ReviMedia’s invoices will be based on the payout determined in real-time on ReviMedia’s lead exchange platform.
Lead and Call counts will be based on reporting numbers from ReviMedia; provided, however, that Lead Buyer shall immediately disclose any discrepancy between Lead Buyer’s and ReviMedia’s reports. In the event of a discrepancy regarding Lead or Call counts, the Parties agree to engage in good-faith efforts to reconcile such discrepancy.
Lead counts will be offset by Lead Returns reported to ReviMedia on or before the tenth day of the month following the month in which the Lead was delivered to Lead Buyer; provided, however, that the number of Lead Returns shall not exceed 20% of the total Leads purchased by Lead Buyer in a given month. Lead Returns in excess of the 20% will be invoiced by ReviMedia and will be payable as valid Leads.
Payment to ReviMedia shall be made by wire, pursuant to the following instructions:
44 Wall Street Suite 505
New York NY 10005
HSBC Bank, USA
110 West Broadway
New York, NY 10003
Account #: 003806359
ABA / Routing #: 021001088
Swift Code: MRMDUS33
All past-due amounts shall accrue interest until paid at the lesser of 1.5% per month or the highest amount permitted by applicable law.
6. 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 (or for no reason) by providing the other Party with written notice (including by email) within 48 hours. In all events, Buyer shall remain liable for a) all Calls and Leads generated prior to the effective date of termination; and b) all remaining Leads and Calls that have not been purchased by Buyer prior to the effective date of termination for all Insertion Orders in which the Parties have agreed to a sum certain of Leads (i.e. a fixed number of Leads). In the event of a material breach by Lead Buyer, ReviMedia may terminate this Agreement and demand immediate payment of all pending balances. Upon termination by either Party, ReviMedia shall cease generation of Leads on behalf of Lead Buyer.
7. Audit Rights: Buyer agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to Calls and Leads generated under this Agreement. Buyer 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 Buyer 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 Calls and Leads generated under this Agreement. Buyer shall immediately pay ReviMedia the amount of any underpayment 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 underpayment was made until the date of payment to ReviMedia. Notwithstanding the foregoing, if an audit determines Buyer underpaid ReviMedia by more than five percent, such audit shall be at the sole cost and expense of Buyer.
8. 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, (d) ReviMedia’s lead exchange technology, and (e) all intellectual property rights (including without limitation copyrights and patent rights) in the foregoing. All data passed to Buyer as a Lead is the sole and exclusive property of ReviMedia and is deemed Confidential Information under this Agreement. Buyer agrees it has no rights in or licenses to any of the foregoing, except as expressly set forth herein.
9. 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.
10. Non-solicitation: During the term of this Agreement, and for a one-year period following termination of this Agreement, Buyer shall not employ, solicit the employment of, nor aid any third party in soliciting an employee of ReviMedia.
11. 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 CAN-SPAM Act of 2003, as amended, the Telephone Consumer Protection Act, 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.
12. Warranty Disclaimer: EXCEPT AS EXPRESSLY SET FORTH IN THE SECTION OF THIS AGREEMENT TITLED “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. REVIMEDIA EXPRESSLY DISCLAIMS ANY WARRANTY THAT IT WILL GENERATE ANY MINIMUM NUMBER OF LEADS AND CALLS UNDER THIS AGREEMENT.
13. Limitation of Liability: OTHER THAN THE INDEMNIFICATION OBLIGATIONS OR ANY CLAIMS RELATED TO BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, NEITHER PARTY SHALL BE ENTITLED TO PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER. UNDER NO CIRCUMSTANCES WILL REVIMEDIA’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT OF REVENUE PAID BY BUYER TO REVIMEDIA PURSUANT TO THE APPLICABLE IO UNDER WHICH THE CLAIM AROSE.
By ReviMedia. ReviMedia agrees to indemnify, defend and hold harmless Buyer, 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, judgement 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; and/or (c) that any of ReviMedia’s Creatives violate the intellectual property or proprietary rights of a third party, are defamatory or obscene or violate any law or other judicial or administrative regulation.
By Buyer. Buyer 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 Buyer of this Agreement; (b) any wrongful conduct committed by Buyer pursuant to or in performance of this Agreement; and/or (c) any of Buyer’s Creatives violate the intellectual property or proprietary rights of a third party, are defamatory or obscene, or violate any Law or other judicial or administrative action.
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.
15. 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.
16. 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.
A party that substantially prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. Notices: All notices and other communications shall be sent by email to [email protected]