TERMS AND CONDITIONS
a. “Ad(s)” or “Creative(s)” means any advertisement provided by Company on behalf of itself or any other clients within its network.
b. “Advertising Materials” or “Marketing Materials” means artwork, copy or active URLs for Ads.
c. “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
d. “Company” means the party executing an Insertion Order with Intentsify.
e. “Insertion Order” (“IO”) is an agreement authorizing Intentsify to create Marketing Campaign(s) (defined below) on behalf of Company, thereby allowing it to generate certain Payable Actions consistent with the terms of the IO. An IO defines the Campaign name, the Company placing the order, the individual advertisements or promotions to be run (or who will provide them), the size of the advertisements, the IO beginning and end dates, the total cost and discounts to be applied, and reporting requirements and possible penalties or stipulations relative to the failure to deliver Payable Actions. The IO may also include targeting criteria and total volume as well as allowed marketing methods, dayparting and geographic location or other limitations.
f. “Marketing Campaign” or “Campaign” is a paid advertising offer on a performance model OR a coordinated series of advertisements that: focus on one or more brands or products, are directed at a particular identified segment of the general population (target audience), and aimed at achieving a specific objective. Types of campaigns include, but are not limited to: (i) Live Transfer or “LT”; (ii) Cost per Lead or “CPL”; (iii) Cost per Acquisition or “CPA”; (iv) Cost per Click or “CPC”; (v) Cost per Inbound Call or “CPIC”; (vi) Cost Per Impression or “CPM”; or (vii) as otherwise set forth in the IO. Campaigns will be created by Intentsify on behalf of Company based on the parameters provided in the Insertion Order. Types of Campaigns offered may be expanded at any time by Intentsify.
g. “Payable Action” is defined as a specific request made by a potential customer for a specific product or service. Company may specify additional or different parameters for what constitutes a qualified or valid Payable Action in the IO.
h. “Policies” means any advertising criteria or specifications made conspicuously available in a Campaign, and to the extent such Policies have been provided via email or other affirmative means to Company or Intentsify, including but not limited to content limitations, technical specifications, user experience policies, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
i. “Personal Data” means information provided to Company by Intentsify that relates to a natural person identified through the Payable Actions.
j. “Law” means any applicable statute, rule or regulation and includes applicable U.S. federal, state and local laws and any applicable foreign or international laws.
2. ABILITY TO BIND COMPANY
a. Company hereby authorizes and directs Intentsify to bind Company to the purchase of Payable Actions, as outlined in the Insertion Orders agreed to between Company and Intentsify.
b. The Insertion Orders will define the following, if applicable: (i) the Cost Per Payable Action range, i.e. how much Company will pay for any given Payable Action; (ii) the total daily/monthly caps on Payable Actions to be purchased, i.e. how many Payable Actions can be purchased in a day or month; (iii) all Campaign targets/fields, i.e. what criteria the Company must have for a Payable Action to be valid; and (iv) the end date for the Campaign. If no end date is provided, Company must provide Intentsify five (5) business days’ notice before a Campaign will be terminated or suspended.
c. Company hereby authorizes Intentsify to manage a Campaign, on behalf of Company, by using Company’s account. If Company does not have an account with Intentsify, by entering into this Agreement or any IO with Intentsify, Company authorizes Intentsify to create a Company account consistent with the purpose of this Agreement or IO. All Campaigns are based on the IOs entered into between the Parties.
d. Modifications to the originally submitted IO will not be binding unless approved in writing by the Parties. This includes but is not limited to start/end dates, allocation, and price. Acknowledged receipt of electronic mail (email) documenting the modifications by both Parties will constitute a writing for these purposes.
Upon initiation of a Campaign, reporting shall be provided by Intentsify to Company. Reporting consists of the Payable Action count provided by Intentsify to Company and the number of returns submitted by Company, if any. All billing shall be based on reporting provided by Intentsify and coordinated with Company’s tracking.
4. PAYMENT AND PAYMENT LIABILITY
a. Intentsify will send an invoice to Company every month for the Payable Actions generated in the previous month. Company must remit payment for the invoiced amount within fifteen (15) days or receipt of the invoice, or as otherwise set forth in the IO (the “Initial Due Date”). Any successfully returned Payable Actions pursuant to section 4(b) below that are accepted after the invoice date will be credited to Company’s account and applied to any outstanding amounts.
i. Company is responsible to make all returns for allegedly invalid Payable Actions within ten (10) days. An “Invalid Payable Action” includes, but is not limited to, a Payable Action that: (i) has invalid or erroneous contact information; (ii) does not match the target criteria for the Campaign in which it was generated; (iii) has been previously provided, i.e. a duplicate Payable Action, or (iv) appears on a suppression list of emails of leads provided by Company to Intentsify prior to the start of the Campaign. Company agrees and acknowledges that it alone is completely responsible for timely submitting returns to Intentsify. Should Company fail to provide timely returns for allegedly Invalid Payable Actions, Company forfeits its right to contest Payable Actions provided during that billing period and all Payable Actions for that billing period will be deemed valid.
ii. In order for a Payable Action to be considered invalid, Company must provide Intentsify via email with as much of the following information as possible for each returned Payable Action: (i) a reason or reasons why the Payable Action is being returned, (ii) name of consumer; (iii) phone number of consumer; (iv) mailing address of consumer; (v) email address of consumer; (vi) notification of date, time, substance and manner of all communications with the consumer, together with all documentation of those communications including call logs, contact notes and summaries and all correspondence with the consumer; and (vii) all internal correspondence related to this specific return. In addition, Company must provide, for CPL Campaigns, the Intentsify Lead Identification, Phone Number or email address and associated disposition. Intentsify will designate Company’s return as incomplete and Company will still be charged for all Payable Actions if Company fails to provide this necessary information.
iii. If a dispute over the validity of Payable Actions is not resolved within thirty (30) days, Intentsify may deem the questioned Payable Actions invalid or valid and accept or withdraw Payable Actions on behalf of the Company. Company agrees that Intentsify has the sole and absolute final discretion to deem a Payable Action valid or invalid.
iv. Company hereby acknowledges that it understands that the sole remedy for any alleged “Invalid Payable Actions” is a replacement, or credit of the amount owed or a refund of the amount paid to Intentsify for this specific “Invalid Payable Action” and that Intentsify, under no circumstances will conduct internal investigations, provide any details beyond what has been provided to the Company before the return was made or engage in any reviews related to “Invalid Payable Actions”. Company acknowledges that because of the volume of Payable Actions being processed by Intentsify, Intentsify is not able to engage in any reviews of individual Payable Actions and will not share any information about any specific individuals, their personal details or any other data that can be connected to an individual.
c. Late Fees and Payments. A fee of 18% APR will be charged to Company for any and all Late Payments. A Late Payment is any payment not made within thirty (30) days of the Initial Due Date. Intentsify has the right to collect past due amounts from Company, with any legal proceeding to be commenced within one (1) year of the payment becoming a Late Payment, notwithstanding any restrictions placed by Section 14(b) below. Company agrees to pay for reasonable costs and expenses, including attorney fees, for any efforts made by Intentsify to collect on past due amounts.
5. PARTNER NETWORKS (Applicable If Partner Networks Are Used)
a. “Partner Network” is a third party services provider whom Intentsify may, at its sole discretion, use during any ongoing Campaign for the purposes of fulfilling a campaign objective. Use of a Partner Network results in various Payable Actions as defined herein and governed by this Agreement.
b. Company agrees that Intentsify may purchase Payable Actions from any Partner Network. If Company does not want to purchase Payable Actions from a specific Partner Network, Company must state, in writing, by Partner Network name or Partner Network’s Intentsify-provided Partner Network identification number (“PNID”) that it does not want to purchase Payable Actions from that particular Partner Network.
c. Third Party Partner Network Payment Liability. Company understands that Intentsify has no obligations relating to payments due to any Partner Network’s then current or previous Company Campaigns, either joint or several. Company agrees that Company is solely liable for any and all charges incurred through Campaigns created pursuant to executed IOs between the Parties. Company will send all payments to Intentsify for all valid Payable Actions based on the payment terms stated in this Agreement. Intentsify will withdraw its fee and thereafter timely pay Partner Networks, if any are associated with the Campaign. Company agrees to protect, indemnify, defend and hold Intentsify and its officers, employees and agents harmless for any and all payments due by Company to Partner Networks incurred through the then current or previous Campaigns of the Company. Company further agrees that any dispute regarding the validity or non-payment of a Payable Action is the sole responsibility of Company. Should a dispute arise regarding Company’s non-payment for allegedly invalid Payable Actions, the dispute is solely between Company and Partner Network, and not with Intentsify. Notwithstanding anything to the contrary in Section 5 of this Agreement, or anywhere else in this Agreement, Intentsify shall have no obligation to hold funds paid by Company due to a Partner Network, if any, if a dispute arises between Company and Partner Network. Intentsify shall not hold any funds in trust on behalf of Company and shall pay a Partner Network, if one was utilized for the Company Campaign, once it has withdrawn its fee.
d. If payment is not made by Company to Intentsify within thirty (30) days of the Initial Due Date, Company’s information may be released by Intentsify to Partner Network. Partner Network has the right to collect past due amounts from Company. Company agrees to pay for reasonable costs and expenses, including attorney fees, for any efforts made by Partner Network to collect on past due amounts.
e. Should a Buyer or Partner Network dispute Intentsify’s billable Payable Action count, Company hereby agrees it shall be its responsibility to meet and confer with the Partner Network. Intentsify shall have no obligation to or be required by the Company and Partner Network to participate in or be involved with any disputed billable Payable Action.
f. Warranty Disclaimer. COMPANY AGREES THAT INTENTSIFY MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING ANY THIRD PARTY PARTNER NETWORK, OTHER THAN AS EXPRESSLY SET FORTH HEREIN. COMPANY FURTHER AGREES AND UNDERSTANDS THAT INTENTSIFY, AS THE TECHNOLOGY PROVIDER, IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY THIRD PARTY PARTNER NETWORKS IN OR THROUGH THE CAMPAIGN.
g. Limitation of Liability.
i. Except as set forth in this Agreement, Intentsify disclaims all liability, whether based in contract, tort, negligence, strict liability or otherwise, for damages of any kind (including without limitation direct, indirect, incidental, consequential, special, punitive or exemplary damages) in any way arising from: (a) any transaction or communication between Company and any third party Partner Network, if any; or (b) the actions or omissions of a third party Partner Network.
ii. Without limiting the foregoing, Company acknowledges and agrees that Intentsify will not be liable for any damages arising from or in connection with any transactions between Company and any third party Partner Network(s), or for any information appearing on Company’s or Partner Networks’ websites.
6. REPRESENTATION AND WARRANTIES
b. Intentsify represents, warrants, covenants and agrees that: (i) it holds the necessary right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, or Law to which Intentsify is bound; (iii) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under this Agreement; and (iv) it has the authority to use and share Personal Data for the purposes for which the Personal Data, or access to it, is provided or obtained pursuant to the terms of this Agreement and is permitted under the law to collect, use, and disclose such data. Company acknowledges that Intentsify makes no representations, warranties or covenants not set forth in this Agreement.
a. Each Party (the “Indemnitor”) shall indemnify and hold harmless the other party, as well as the other Party’s officers, directors, members, employees and agents (collectively, the “Indemnified Parties”), from and against any and all losses, liabilities, obligations, damages, actions, suits, proceedings, claims, demands, assessments, judgments, costs, penalties, and expenses, including reasonable attorneys’ fees and disbursements, incurred, borne or asserted by a third party against any of the Indemnified Parties in any way relating to, arising out of or resulting from the Indemnitor’s actual or alleged: (i) breach of this Agreement; (ii) intentional or negligent wrongdoing; (iii) violation of the CAN-SPAM Act of 2003, the FTC Act, the Telephone Consumer Protection Act, and all other Laws; and (iv) infringement, violation or misappropriation of any patent right, copyright, trademark right, trade dress right or other intellectual property right. In addition, Company agrees to fully indemnify and hold Intentsify harmless for any claims stemming from Company’s refusal to pay for Payable Actions obtained by Intentsify consistent with this Agreement or any IO.
b. The Indemnified Parties shall promptly notify the Indemnitor in writing of any such claim or suit within ten (10) business days that the pleading, demand letter, or other notice is served upon Indemnified Parties, and shall cooperate in a reasonable manner with Indemnitor and at the Indemnitor’s expense, with respect to the defense and disposition of such claim. Indemnitor will have control of the defense or settlement, provided however, that the Indemnitor shall not enter into any settlement that obligates the Indemnified Parties to take any action or incur any expense without such Indemnified Parties’ prior written consent, and further provided that the Indemnified Parties will have the right to be represented by independent counsel of their own choosing, at their own expense, in connection with such claim or suit. If the Indemnitor fails to defend such suit, then the Indemnified Parties, through counsel of their own choice, may, at the expense of the Indemnitor, conduct the defense of such claim, on the condition that the Indemnified Parties will not enter into any settlement that obligates the Indemnitor take any action or incur any expense without the Indemnitor’s prior written consent.
8. WARRANTY DISCLAIMER
EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY AGREES THAT THE PAYABLE ACTIONS, THE SERVICES, THE CAMPAIGN, AND THE INTENTSIFY WEBSITE ARE AVAILABLE ON AN “AS IS” “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND THAT INTENTSIFY MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PAYABLE ACTIONS, THE SERVICES, THE CAMPAIGN, OR THE INTENTSIFY WEBSITE, OTHER THAN AS EXPRESSLY SET FORTH HEREIN. COMPANY EXPRESSLY AGREES THAT COMPANY’S USE OF THE PAYABLE ACTIONS, THE SERVICES, THE CAMPAIGN GENERATED INFORMATION, AND THE INFUSE MEDIA WEBSITE IS AT ITS OWN RISK.
9. LIMITATION OF LIABILITY
a. Except as set forth in this Agreement, Intentsify disclaims all liability, whether based in contract, tort, negligence, strict liability or otherwise, for damages of any kind (including without limitation direct, indirect, incidental, consequential, special, punitive or exemplary damages) in any way arising from this Agreement, even if Intentsify is expressly advised of the possibility of such damages.
b. Without limiting the foregoing, Intentsify shall not be liable for damages exceeding the amount paid by Company to Intentsify in the one (1) month period immediately preceding the event that gave rise to the damages.
10. CONFIDENTIALITY, DATA OWNERSHIP, PRIVACY AND LAWS
a. “Confidential Information” shall mean all proprietary information of the Party disclosing the information (“Disclosing Party”) and the Disclosing Party’s affiliated and related companies, including information provided to the Disclosing Party by third parties that the Disclosing Party is obligated to keep confidential, whether provided before or after the Parties execute this Agreement. Unless excluded in writing by the Disclosing Party, the Parties shall assume that any and all information disclosed, that is of a nature that a reasonable person would understand is confidential, is Confidential Information, whether in oral form, machine-readable form, written, digital, electronic or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing, Confidential Information includes inventions, product research and development, production data, product designs, specifications, descriptions and labels, discoveries, trade secrets, techniques, models, data, programs, processes, know-how, customer lists and contact information, personal information with respect to employees, customers or others, including but not limited to customer email addresses, client names, marketing plans, drawings, financial information, products, business plans, sales positioning strategies and communication strategies. Each party will protect the Disclosing Party’s Confidential Information in the same manner that it protects its own information of a similar nature. Each Party shall not disclose the Disclosing Party’s Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section.
b. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of the Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the Disclosing Party; (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Disclosing Party; or (v) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement, provided however, that: (a) the Recipient promptly notifies the Disclosing Party of such disclosure requirement; (b) cooperates (at Disclosing Party’s expense) in any lawful effort by Disclosing Party to oppose or limit such disclosure; and (c) discloses only so much of such Confidential Information as, on advice of counsel, it is legally obligated to disclose.
c. Any data processed through the Campaign is owned by Intentsify. Intentsify hereby grants to Company a non-exclusive, perpetual, irrevocable right to access, copy, and use the data for all legal purposes. Nothing herein shall prohibit Intentsify from using anonymous aggregated data for purposes of system performance, reporting and tuning, and for purposes of marketing, sales, business development, and the benchmarking of its future Campaigns and Intentsify services as compared with other similar services.
d. Company acknowledges and agrees that: (i) all right, title and interest in and to the Intentsify website and any electronic deliverables including Campaign reporting, communications, Marketing Materials and all derivatives thereof, and all intellectual property rights therein (including without limitation any and all patents, copyrights, trade secrets, rights, trademarks, trade names, moral rights and other proprietary rights embodied therein or associated therewith) and all modifications, changes, enhancements or additions thereto (whether initiated by the Company or otherwise) (collectively, “Intentsify IP”), all of which are protected by copyright, trade secret, and other proprietary rights and laws, shall at all times remain the proprietary property of Intentsify, or property of any third party licensors, as applicable; and (ii) Company in no way receives any right or interest in any of the foregoing other than the limited license granted hereunder to use them in accordance herewith. To the extent that Company acquires any rights in the Intentsify IP, Company assigns such rights to Intentsify and waives any moral rights it may have to the Intentsify IP to and in favor of Intentsify. The Intentsify name, logo, and the product names associated with the Campaign and Services are trademarks of Intentsify or third parties, and Company shall not remove or alter any Intentsify trademark or logo.
f. Intentsify and Company will comply with all applicable federal, state and local, foreign and international laws, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
g. Each Party agrees that monetary damages for breach of confidentiality under this Section may not be adequate and that the Disclosing Party shall be further entitled to seek injunctive relief. Nothing contained in this Agreement shall be interpreted as granting rights by license or otherwise in any Confidential Information disclosed pursuant to this Agreement.
11. TERM AND TERMINATION
a. This Agreement shall become effective on the date signed by the Parties below and shall remain in effect for one (1) year or until it is terminated in accordance with the IO or is terminated by Intentsify.
b. This Agreement may be terminated by either Party upon five (5) business days’ notice in writing to the other Party. Termination by Company shall not eliminate Company’s obligation to pay for Payable Actions generated after the termination of this Agreement but before the end of the notice period.
c. Except as it relates to non-payment of invoices, payable actions and returns which are governed by Section 4 above, in the event of an alleged material breach or non-performance of the Agreement, the Parties shall provide each other with a thirty (30) day right to cure by a written notice providing a detailed statement of its claim of such material breach or material nonperformance. The other party shall have thirty (30) days to cure any such actual material breach or material non-performance.
12. NON-COMPETE, NON-SOLICITATION AND NON-CIRCUMVENT
Company agrees that during the term of this Agreement and for a period of two (2) years after termination it shall not, directly or indirectly, solicit, entice or induce any employee, agent representative, client or professional of Intentsify to terminate or refrain from renewing, continuing or extending such employment or relationship with Intentsify or otherwise alter such employment or relationship with Intentsify or to become an employee, agent, representative or professional advisor of Company or any person competing with Intentsify. Company further agrees not to use reverse engineering or tracing of Intentsify Clients traffic for means to directly solicit Intentsify Clients or other third parties away from Intentsify.
Company acknowledges and agrees that during and after the term of this Agreement, Intentsify shall have the right to use Company’s name, logo, URL, Website screen captures, and description as well as descriptions and examples of the work and services completed and provided to Company by Intentsify in Intentsify’s marketing, publicity, and promotional activities and materials, including, but not limited to, press releases, marketing collateral, case studies, and in advertisements, without further consent or approval of Client.