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Company operates a technology platform whereby select and approved persons, hereinafter referred to as “Affiliates,” may elect to perform advertising and marketing services related to certain products available and generate expressions of interest in such products (commonly known as “leads”).;
In order to participate in, or receive any, of the services offered or made available by Company through its technology platform, Affiliate has applied to become a member of the Company “Network,” and Company is willing to accept the application subject to the terms and conditions of this Agreement.
Affiliate agrees that this Agreement will apply to all Services that Affiliate receives and/or participates in with Company, and to any Account that Affiliate may establish with Company. In the event of any conflict, the order of interpretation will be (1) this Agreement, and (2) any technical document respecting a particular service, such as an Insertion Order (IO). The terms of any such agreement are considered confidential and independent of this Agreement.
Definitions:
“Affiliate” means any person, including third-party marketers, who participates in an Affiliate Program, and registered with the Company via the affiliate signup process, responsible for advertising and marketing financial products, using varied digital assets and channels, for the purpose of 1) directing consumers to fill our online application at a website owned and operated by Company; or 2) collecting consumer data to post to Company’s ping tree.
“Affiliate Network” means any person who provides another Person with Affiliates for an Affiliate Program or whom any Person contracts with as an Affiliate to Promote any good or service; and that enable affiliate, marketers and advertisers to conduct transactions through the distribution of digital assets and the use of tracking systems, where traffic and/or leads are generated and commissions are provided based on specific affiliate campaigns.
“Affiliate Program(s)” means any arrangement under which any marketer or seller of services made available by Company through its technology platform, either directly or through an Affiliate Network.
“Digital Assets” includes, but are not limited to, visual aids used to engage consumers and persuade them to complete an online application for a financial product, such as emails, banner ads, sidebar ads and pop-up ads.
“Person” means a natural person, an organization or other legal entity, including a corporation, partnership, sole proprietorship, limited liability company, association, cooperative, or any other group or combination acting as an entity.
In order to participate in any portion of the Services, the Affiliate may be required to provide identifying information (e.g. identification or contact details) to establish an account in order to access and use this Service. Affiliate may also be required to update registration information as part of the continued use of the Service. Affiliate agrees that any registration information given to Company will always be accurate, correct and up to date.
By clicking “Create Account,” you further agree: (A) to the terms and conditions of this Agreement; (B) to be bound by this Agreement; (C) Acknowledge and agree that you have independently evaluated the desirability of participation in the Program and are not relying on any representation or statement other than that which is expressly set forth in this Agreement; (D) represent and warrant that you are lawfully able to enter into Agreements (i.e. you are not a minor); (E) you are and will remain in compliance with the terms of this Agreement and with all state and federal laws; and (F) if you are entering this Agreement on behalf of a legal entity, then you are authorized (i.e. as an agent of legal entity) and lawfully able to bind the legal entity.
This Agreement and its Terms and Conditions are subject to change by Company at any time. Changes may include, without limitation, changes in the payout structure, payment procedures and other Services-related policies; provided, however, that: (i) any amendment or modification to provisions applicable to disputes will not apply to any disputes that arise before the applicable amendment or modification has been released; and (ii) any amendment or change to payment provisions under these Terms and Conditions will not apply prior to the date of release of the amendment or modification.
Either party may terminate this agreement, at any time, and for any reason. Notice of termination may be made by US mail or by email. Upon termination, Affiliate will stop using the Service(s) immediately. All obligations pertaining to uncontested payments, unresolved disputes, limitation of liability, indemnity and confidentiality shall survive such termination, only to the extent and time reasonably necessary to resolve such disputes.
Company reserves the right, in its sole and absolute discretion to immediately terminate Affiliate’s access to the platform at any time, without notice, should Company suspect fraud, identity theft, misrepresenting or assisting others in misrepresenting any material fact, expressly or by implication, and/or negligence in Affiliate’s business operations.
Upon termination of this Agreement, any and all licenses and rights that may have been granted to each party by the other in connection with this agreement shall terminate immediately. Each party will return or destroy any and all Confidential Information that was exchanged between the parties, and if Company requests, the Affiliate must certify that all such Confidential Information belonging to Company was returned or destroyed in accordance with, and as so instructed, by Company.
Any termination of this agreement will not affect any obligations that, by their nature, are intended to survive termination, including without limitation, obligations regarding payment, confidentiality and indemnification, which will survive for a period of one year from the date of termination.
All payments generated pursuant to this Agreement will be paid in U.S. dollars. The initial payment to Affiliate may, in Company’s sole discretion, be delayed up to fourteen (14) days in order for Affiliate to undergo the appropriate due diligence required to properly vet Affiliate’s professional background and/or Affiliate’s advertising and marketing methods.
Any payments made to Affiliate under this Agreement will be made electronically, under a Net 7 payment schedule. Company will compile, calculate and electronically deliver reports of all data transferred between the parties. Upon written request by Affiliate, Company may also provide additional data, as necessary, to demonstrate billing and compensation calculations. Any questions regarding the data provided by Company, or disputes regarding payments made, must be submitted in writing within five (5) business days of the reporting provided by Company, otherwise the information will be deemed accurate and accepted by Affiliate.
Upon termination of this agreement and except where otherwise provided, all payments that are due to Affiliate will be paid during the next billing cycle.
Company reserves the right, but is not obligated to, investigate invalid or questionable traffic and/or any of Affiliate’s advertising and marketing practices during the term of the relationship between the parties. Company will notify Affiliate of any investigations, and the outcome of the same. If Company suspects that Affiliate may have engaged in an action which violates Applicable Law or this Agreement, Affiliate agrees that they will cooperate fully with the Company investigation and will, within two (2) business days of request, tender to Company all information requested, as well as any additional information that may be relevant to its investigation.
Affiliate must provide a unique valid Taxpayer Identification Number (TIN) or valid Social Security Number (SSN), or other appropriate identification documentation (to be determined on an individual basis by Company) to receive payment. Additionally, Affiliate must have a valid, completed Form W8 or Form W9, or other appropriate identification documentation (to be determined on an individual basis by Company) on file with Company. Company reserves the right to withhold any and all payments due if there are issues with this identifying paperwork.
If Company fails to receive payment in full from a Network Party, it will have no payment obligation to Affiliate. Affiliate accepts all risks associated with non-payment by the Network Party, and explicitly acknowledges that Company is not a guarantor of any payment or other obligation of any Network Party. If a Network Party does not pay on time, Company may, in its discretion, notify Affiliate and offer assistance with respect to collection, but it is not contractually obligated to do so.
In certain circumstances, to be determined by Company, in its sole discretion, may decide to pay Affiliate for any amounts owed by a Network Party if that Network Party does not pay timely. If Company decides to make such a payment to Affiliate, then Affiliate agree to assign all rights to future payments from that Network party to Company equal to the amount which Company has already paid to Affiliate.
Further, and in addition to any other remedies available to Company under these Terms and Conditions, Company reserves the right to:
decline to pay or otherwise compensate Affiliate for any clicks, leads, actions or traffic that is believed to have been generated using Fraudulent or Deceptive Means or in violation of Applicable Law;
set off against any future payments owed to Affiliate or seek reimbursement or charge backs for clicks, leads, actions or traffic that is believed to be have been generated using Fraudulent or Deceptive Means, duplications or inaccuracies, technical errors, tracking discrepancies, and/or
set off or seek reimbursement for any payments made in violation of these Terms and Conditions.
Affiliate will be responsible for paying any and all applicable taxes (if any) due to all taxing authorities arising from, or in connection with, Affiliate’s participation in the Service.
There will be no responsibility to tender payments to Affiliate for
consumer information that is transmitted and sold after this agreement terminates;
consumer information that does not satisfy the Consumer Data Guidelines,
consumer information that is not recorded due to Affiliate’s error or intentional interference;
any perceived instances of fraud, material misconduct, negligence, or any other action that would be deemed, in Company’s sole discretion, to breach this agreement.
If Company determines that any Affiliate or Affiliate Network has engaged in or is engaged in acts or practices prohibited by law or this Agreement, either directly or through any Affiliate that is part of Company’s Affiliate Program, Company may, at its own discretion, halt processing of any payments or charges generated by the Affiliate or Affiliate Network, and immediately terminate the Affiliate or Affiliate Network.
Any consumer data sent to the Platform must satisfy all of Company’s Consumer Data Guidelines in this subsection (“Guidelines”). Any data that does not comply with the Guidelines will be deemed invalid, for which no payment will be tendered to Affiliate, and Company will not use the data for any commercial purposes whatsoever.
Delivery. The data must comply with all technical specifications communicated to Affiliate by Company. These specifications will be communicated from time to time, and Company reserves the right to change the aforementioned specifications should the Platform be modified/updated as necessary.
Self-Generation. Information must be submitted directly to Affiliate by that Data Subject and may not be generated through the use of bots, fraudulent means, or any other method which may be deemed “spam”.
Completeness. Any consumer data transferred must include all required fields as specified by the Technical Specifications and Affiliate may not use default values for any of those required fields.
Data Integrity. Affiliate must ensure that the file includes only information that has been input by the Data Subject and must make commercially reasonable efforts to ensure that information provided is accurate. Consumer data may be rejected, or later invalidated, based an inability to verify the accuracy of certain information contained within the file. In addition, Affiliate must provide accurate timestamp and other identifying information that is required to determine the age of the data and any information that would allow Company to properly determine Data Integrity.
Duplication. Duplicate files of consumer data may not be sent to Company within thirty (30) days of each other. To the extent that Affiliate has a high percentage of duplicates, Company reserves the right to extend the duplicate review period for whatever period Company deems necessary to complete a full and thorough investigation.
Incentivized Leads. Affiliate may not provide any consumer data that may have been generated by misleading the Data Subject, or by providing the Data Subject a reason to believe that they will receive a prize, gift, payment or pecuniary benefit of any kind in exchange for their consumer data.
Each party represents and warrants that:
It has full power and authority to enter into this Agreement, which is legally binding, and the execution, delivery and performance of this Agreement will materially comply with all Applicable Laws, rules and regulations;
Neither party currently uses, or will in the future use, any Fraudulent or Deceptive Means to perform this Agreement;
On every consumer facing website at which data could be collected and/or processed, both parties will post a privacy policy and website terms and conditions of use, which will accurately describe data collection, storage and data sharing procedures, and will comply with all Applicable Law;
The Data that is transferred pursuant to this Agreement will be current, accurate and complete; and will not contain any email addresses that were obtained through email harvesting or dictionary attacks, whether by Affiliate or by a third party;
Each party shall, within five (5) business days of receipt, promptly applicable party, as the case may be, with any and all ‘do not contact’ and ‘unsubscribe’ notifications that it receives that are relevant to the Data provided pursuant to this Agreement;
No adverse claim has been made against such party with regard to the Use, Collection or Processing of any such Data;
Each party maintains suitable Records, in commercially reasonable detail, with respect to the Collection and Processing and Use of all such Data;
Each party has obtained any necessary permission needed to Transfer all such Data, whether from the Data Subjects or from any Third Party from which such party has acquired such Data;
Daily operations will not violate any other party’s intellectual property rights, and each party will be solely responsible for the development, operation and maintenance of its website, database, any and all materials that appear on websites, including without limitation:
the technical operation of websites and all related equipment;
creating and posting content, descriptions and references on websites;
the accuracy and propriety of materials posted on their respective website;
Each party recognizes and understands that the other will enter into agreements with, and will provide the Service to individuals and entities in direct competition with the other;
During the term of this Agreement, and for a period of two (2) years after termination of this Agreement, neither party will use the other party’s content as a prospecting tool for purposes of soliciting any Network Party.
With respect to marketing services and campaigns perform pursuant to this Agreement, each party represents and warrants that all such campaigns and marketing services:
will be truthful, accurate and in compliance with all applicable laws;
will comply with all applicable Campaign instructions and/or restrictions specified in the Campaign; and
will not entail or promote any illegal activities of any kind;
Marketing services will not include, or use paid or sponsored search results, or spyware or adware to promote any Campaign;
No posting of any specific messages relating to services under this agreement or either party, or any Content or Campaign to newsgroups, chat rooms, bulletin boards, blog comments, or to any Internet site that utilizes social website internal email systems;
Neither party will provide services under this Agreement via a website or link to other websites that contain any pornographic, racial, ethnic, political, software pirating or hacking, hate-mongering, or otherwise objectionable content;
Each party will promote Campaigns strictly in accordance with the terms and conditions of this Agreement, including any and all restrictions placed on services by either party from time to time.
No Content provided by one party to the other will be modified in any manner without the other party’s written consent.
Affiliate will abide by any category, Campaign or sub-ID daily click or revenue caps as imposed by Company from time to time. For the avoidance of doubt, and notwithstanding anything to the contrary, Affiliate understands that Company may in its sole discretion decline to pay or otherwise compensate Affiliate for any clicks, leads or traffic in excess of such caps and Company shall not use the consumer data provided in excess of such caps for any non-internal or commercial reason whatsoever and shall not provide them for use by third parties.
The product, service, or Internet web site that is advertised or promoted by each email Affiliate may send pursuant to this Agreement, is sufficient to qualify Affiliate as a "sender" under the CAN-SPAM Act, 15 U.S.C. § 7702(16)(A); and in accordance with the aforementioned regulation, any emails sent by Affiliate will contain a functioning unsubscribe link, Affiliate name, a valid postal mailing address and link to both Affiliate’s website and privacy policy;
Upon request by Company, Affiliate shall provide date, time stamp, IP address and site ID (URL) for any express consent (opt-in), or any other identifying information requested by Company, obtained from any user in Affiliate’s database within 24 hours of such request.
Affiliate Content Requirements. All marketing materials must: (a) use plain and intelligible language; (b) be easily legible (or, in the case of any information given orally, clearly audible); (c) specify the name of the advertiser; (d) be factually accurate; (e) easily legible (fonts and colors); (f) must include the name and postal address of the Affiliate; (f) must represent actual loans; and (g) not contain any potential misrepresentations. Where an advertisement includes a rate of interest or an amount relating to the cost of the credit whether expressed as a sum of money or a proportion of a specified amount, the advertisement also must: (d) include a representative example (including (i) the rate of interest, whether fixed, variable or both; (ii) the nature and amount of any other charge included in the total charge for credit; (iii) the total amount of credit; (iv) the representative APR; (v) the duration of the agreement (unless open-ended); and (vi) the total amount payable by the debtor and the amount of each repayment of credit (unless open ended)); and (e) specify a postal address at which the credit broker or advertiser may be contacted. Any direct marketing campaigns should only be made if the intended recipients likely to qualify for the product or service and reasonably able to obtain: (i) the products or services advertised, (ii) the interest rates advertised, (iii) other loan features offered. All advertising materials must clearly, prominently, and accurately describe any related services that are either optional or required to obtain certain terms.
Company disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage, or trade practice except as set forth herein.
Affiliate owns or has the legal right to use and distribute all Media used within any advertising and marketing campaign; and said media complies with all Applicable Laws and does not contain or promote, nor link to, another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal or illegally obtained content, in Company’s sole discretion;
Affiliate shall not and shall not permit any third-party Sub-Affiliate or other user to, engage in any activity that violates the Advertising and Marketing Best Practices policy or any applicable Laws.
Affiliate shall not engage in acts or practices that are likely to mislead consumers including but not limited to the following:
Misrepresenting any material restrictions, limitations, or conditions;
Misrepresenting any material aspect about the nature or terms of refund, cancellation;
Failing to disclose clearly and conspicuously the following:
any material connection, when one exists, between any user or endorser of any product, service, or program and any other person manufacturing, advertising, labeling, promoting, offering for sale, selling or distributing such product or service;
if applicable, that the content of any website or other publication has not be authored by an objective journalist but is in fact an advertisement placed for compensation;
if applicable, that the consumer will be subject to recurring charges for additional services unless and until the consumer takes specific steps to cancel those services; failing to, in connection with the advertising, promotion, marketing, offering for sale, sale, or provision of any services though an affiliate program;
Affiliate will immediately notify Company if Affiliate is aware or has reason to be aware, of any complaint, litigation, or threatened litigation regarding Affiliate’s relationship with Company, including but not limited to, any complaint, litigation, or threatened litigation surrounding Affiliate’s advertising and marketing practices as a whole.
Affiliate or Affiliate Network, prior to use or dissemination to consumers of any marketing materials, including, but not limited to, websites, emails, and pop-ups used by any Affiliate or Affiliate Network to advertise, promote, market, offer for sale, or sell any services contemplated under this agreement, provide Company with copies of all marketing materials to be used by the Affiliate or Affiliate Network, including text, graphics, video, audio, and photographs; for hyperlinks contained in marketing materials, each location to which a consumer will be transferred by clicking the hyperlink, including URL of any website . However, if Company shall only have access to affiliates only through an Affiliate Network, the Affiliate Network shall obtain and maintain the same information set forth above from each of those affiliates who are party of the affiliate program.
Affiliate shall promptly and completely investigate any complaints that Company receives through any source to determine whether any Affiliate or Affiliate Network is engaging in prohibited acts or practices.
Affiliate agrees to allow Company to use any means of monitoring activities used pursuant to this Agreement.
During the Term of this Agreement, Company or their designated third-party auditor, may, upon no less than seventy-two (72) hours written notice, audit and inspect during normal business hours for compliance with (a) the terms of this Agreement and (b) law applicable to the work and services provided by Affiliate under this Agreement. The parties agree that any such audit and inspection shall be conducted in a manner that does not disrupt Affiliate’s normal operating procedures. Affiliate shall be responsible for any and all costs associated with said audit.
If Company reasonably believes that there is the potential for data fraud or other non-compliance with this Agreement or Applicable Law, Company may freeze Affiliate’s account(s) and prohibit access to the platform pending the conclusion of Company’s investigation.
Campaigns may be subject to additional rules, as set forth in the Campaign details, and promotion of a Campaign constitutes acceptance of those additional rules and agreement not to breach those rules, which are incorporated into this agreement by this reference. Violation of the additional rules in a Campaign shall constitute a material breach of this Agreement.
Company may seek such refunds or setoffs at any time during this Agreement and for up to one (1) year following the termination of this Agreement.
Company reserves any and all rights, civil and criminal, it may have against the Affiliate included in and independent of this Agreement for violation of this Agreement.
Each party shall keep all Confidential Information strictly confidential for two (2) years from the date such party received the Confidential Information. All consumer data shall be considered confidential information and therefore, both parties must:
restrict disclosure of Confidential Information to only employees who have a need to know (each a “Representative”) as necessary to perform the obligations and purposes for which the Confidential Information was disclosed;
ensure that each such Representative keep such Confidential Information secure and confidential at all times understanding that such party will be solely responsible for any disclosure of Confidential Information by any of such party’s Representatives in violation of these Terms and Conditions; and
use the Confidential Information received only for purposes directly related to the purposes of fulfilling obligations under this agreement and for no other purpose.
Nothing contained in these Terms and Conditions will be construed as granting or conferring any rights, title or interest in or to any Confidential Information of either party. All Confidential Information will remain the property of the disclosing party and the parties agree to return all Confidential Information and any copies contain all or any portion of Confidential Information to the disclosing party immediately upon written request. Either Party will construe no disclosure of any Confidential Information under these Terms and Conditions to be a public disclosure of such Confidential Information for any purpose whatsoever.
The information and services provided by each party are proprietary in nature and, by accepting these Terms and Conditions, each party acknowledges that it is a competitor of the other and agrees not to share any such information with any competitors of each other. Affiliate further agrees that monetary damages for breach of this Section 9 may not be adequate and that the disclosing party will be further entitled to injunctive relief, without the requirement to post bond.
his Section will survive any termination of this Agreement for a period of two (2) years, or for as long as the Confidential Information in question remains a trade secret under applicable laws and regulations, whichever period is longer.
Affiliate acknowledges and agrees that each party owns all legal right, title and interest in and to their respective Sites and Services, including any intellectual property rights that subsist in the Services (whether those rights happen to be registered or not, and where in the world where those rights may exist)
Unless otherwise agreed in writing or necessary to offer a service contemplated herein, nothing in the Terms and Conditions gives the other party a right to use each other’s Marks or any Marks of a Network Party without prior express consent. If such party has been given an explicit right to use any of Marks in a separate written agreement, then use of such Mark will be in strict compliance with that agreement, any applicable provisions of the Terms and Conditions, any guidelines that either or both parties may require Affiliate to follow as updated from time to time.
Affiliate understands and agrees that the availability of the Platform or Service does not operate to act as a waiver of any rights related to those items, and each party does not acquire any transfer of ownership rights to what the other party makes available through its respective Service or its Site.
By using the Site you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Site and associated content in accordance with the Agreement. Registration through the Site shall confer no right to participate as a Company Affiliate. Once approved as an Affiliate, you shall be subject to the restrictions contained in the applicable Network Agreement regarding use of the Creative Materials, the Company. Network and other materials made available therein. Company may terminate this license at any time for any reason. You may use the Site for your own personal, non-commercial use. No part of the Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Creative Materials, Site, any content featured therein or any portion thereof. Company reserves any rights not explicitly granted in the Agreement. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site Company Network. You may not take any action that imposes an unreasonable or disproportionately large load on Company infrastructure. Your right to use the Site is not transferable.
Company shall have sole ownership of and full right to use any and all Leads and data generated by Affiliate in connection with this Agreement, throughout the term of this Agreement and beyond. Affiliate transfers full ownership and a proprietary interest in all Leads that are purchased and paid for by Company. Affiliate shall have no rights to any Leads. Affiliate shall have no right to use Leads other than as expressly stated in this Agreement or as expressly authorized by Company. in writing. Affiliate shall refrain from disclosing, selling, or otherwise distributing Leads purchased by Company. to any third parties. Without limiting the foregoing, Affiliate shall not: (i) transfer, export, display, forward, or otherwise share any such Leads to or with any third party; or, (ii) use any such Leads on Affiliate’s own behalf in any manner not expressly authorized by Company.
For purposes of this Agreement, any partner, associate, contractor, representative, or agent of Affiliate that participates in or performs any activities for Affiliate as a part of the Network shall be deemed a “Sub-Affiliate.” Any and all Sub-Affiliates must be preapproved by Company. Without limiting the foregoing, any Sub-Affiliate is prohibited from using Company’s Creative Material on any website unless given prior written approval by Company. Company reserves the right to withhold or refuse approval of any Sub-Affiliate for any reason or no reason at all, and Company may revoke its approval of any Sub-Affiliate at any time, with or without notice, for any reason or no reason at all. All Sub-Affiliates must meet the same criteria for approval and must comply with the same obligations as required of the Affiliate under this Agreement. Affiliate shall be responsible for the acts and/or omissions of its Sub-Affiliates. Affiliate agrees to indemnify, defend and hold harmless Company and its directors, officers, shareholders, employees, agents and publishers from and against any and all third-party claims, actions, and suits, including reasonable attorneys’ fees and costs arising out of or related to the acts, errors, or omissions of the Affiliate, its Sub-Affiliates, and any of Affiliates or Sub-Affiliate’s directors, officers, employees, and agents.
The exclusions and limitations contained in these Terms and Conditions are intended to exclude warranties and to limit or exclude liability to the maximum extent permitted by law.
Each party expressly understands and agrees that use of the services and platform provided is at such party’s sole risk and that the service and platform provided are provided “as is, where is” and “as available”, with all faults. Neither party represents or warrants that use of the service or platform or any third party components and information (1) will meet requirements, (2) will produce the results or revenue sought, or (3) will be uninterrupted, timely, secure or free from error, or (4) will be accurate or reliable; or any encryption algorithms, associated keys and other security measures provided pursuant to the service will be secure or effective; or any defects in the operation or functionality of any software provided as part of the service will be corrected. All parties further expressly disclaim all warranties and conditions of any kind, whether express or implied, including but not limited to (1) quiet enjoyment, quality of information, security, reliability, timeliness, availability of backed up data, performance of service; and (2) implied warranties of merchantability, fitness for a particular purpose, non-infringement, and title. All parties agree that they will be solely responsible for any damage to their respective computer system or other device of loss of data that results from participation in the service and lead production. No advice or information, whether oral or written, obtained by from either party will create any representation or warranty not expressly stated in these terms and conditions.
Under no circumstances will either party be liable to the other for: for any indirect, incidental, consequential, special, exemplary, punitive or other damages (including damages for lost profits or lost revenues (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, lost business opportunities, lost customers or loss of use, cost of procurement of substitute services, or other intangible loss), under any legal or equitable theory of liability, whether incurred by you or any third party, even if the party had been advised of their likelihood; or any loss or damage that may be incurred by such party , including but not limited to loss or damage arising from any reason.
The limitations on liability in this section 12 will apply whether or not either party has advised of or should have been aware of the possibility of any such losses arising. The exclusions of warranty and limitations of liability set forth in this agreement are fundamental elements of the basis of bargain and the parties would not enter into any legal agreement to provide the service without agreement to these exclusions and limitations. Each party’s liability to the other shall not exceed $1,000.
You agree to indemnify and hold Company, its parents, subsidiaries, and affiliates, and each of their respective members, officers, directors, employees, agents, co-branders and/or other partners, harmless from and against any and all claims, expenses (including reasonable attorneys’ fees), damages, suits, costs, demands and/or judgments whatsoever, made by any third party due to or arising out of: (a) your use of the Site, Creative Materials and/or Company Network; (b) your breach of the Agreement; and/or (c) any dispute between you and any Site-User, Affiliate, Advertiser, any third party or other entity. The provisions of this paragraph are for the benefit of Company, its parents, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against You on its own behalf.
This Agreement shall be governed and construed in accordance with the law of the State of Delaware.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with either (i) its Commercial Arbitration Rules or (ii) Arbitration Rules to be mutually agreed upon by the parties, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement.
All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
Force Majeure. Neither party will be liable or considered in breach of the Terms and Conditions on account of delay or failure to perform as required under the Terms and Conditions due to, arising or resulting from any causes or conditions that are beyond the reasonable control of the party which such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, pandemics, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, each party to notify the other and use commercially reasonable efforts to minimize the impact of any such event.
Notices. Any notice under this Agreement must be in writing and will be deemed to have been duly delivered if hand-delivered, mailed postage-prepaid to the respective address of each party set forth below, or to such other address as Company may designate, or sent by verified electronic mail to the contact information identified below:
No Waiver of Rights. Neither party waives enforce or any legal right or remedy which is contained in the Terms and Conditions by failure to act upon such right
Signature. Both parties agree that electronic signatures shall have the same force and effect and will bind either party to this Agreement tin the same manner and to the same extent as a physical signature would do, in accordance with the Electronic Signatures in Global and National Commerce Act (“ESIGN”) to the extent applicable. Both parties also agree that this Agreement and all related documents are electronic records and that, as such, they may be transferred, authenticated, stored and transmitted by electronic means.
Miscellaneous.
Captions and section numbers are used in this Agreement for convenience only and may not be used in the construction or interpretation of this Agreement.
Despite the possibility that one party may have prepared the initial draft of this Agreement or played the greater role in the physical preparation of subsequent drafts, the parties agree that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favor of one party on the ground that such provision was drafted by the other.
If any Section or provision of these Terms and Conditions, or the application of such Section or provision, is held invalid by any court of competent jurisdiction, applicable statute or rule of law, then such Section or provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a Section or provision of this Agreement as though the amended language existed originally at the time entered this Agreement. If the invalid Section or provision is of such a nature that it cannot be so adjusted, then the Section or provision will be deemed deleted from this Agreement as though such Section or provision had never been included. In either case, the remaining Sections and provisions of this Agreement shall be interpreted so as to best reasonably affect the original intent of the parties.
Relationship Between Parties: The parties are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties.
Succession: This Agreement will be binding on, inure to the benefit of and be enforceable against the parties’ successors and assigns.
Assignment: Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any assignment in violation of this provision is void ab initio. This Agreement shall be binding on each party's successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement:
September 27, 2022
GRAB MARKETING, LLC
Signature:
Definitions: In addition to any terms defined elsewhere in the Agreement, the following terms have the following meanings. Other capitalized terms used herein but not herein defined shall have the meaning set forth in the Agreement.
"Personally Identifiable Information” shall mean any information that alone or in combination with other information, relates to a specific, identifiable individual person. By way of illustration and not limitation, Personally Identifiable Information includes individual names, personal identification numbers such as Social Security or Social Insurance Numbers, credit card numbers, home telephone numbers, home addresses, driver's license numbers, account numbers, personal email addresses, and vehicle registration numbers, as well as Nonpublic Personal Information as defined by Title V of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) and any of its applicable implementing regulations. Specific information that can be associated with Personally Identifiable Information, such as a user ID or an e-mail address, shall also be Personally Identifiable Information. For example, an individual's age alone is not Personally Identifiable Information, but if such age were capable of being associated with a specific, identifiable individual, then such age would be deemed Personally Identifiable Information. Personally Identifiable Information also includes the fact that an individual has a relationship with GRAB MARKETING, LLC.
"GRAB MARKETING, LLC-Owned Information" shall mean all client information lists, including any Personally Identifiable Information therein, provided by GRAB MARKETING, LLC to Purchaser.
Data Security Standards
At all times, Purchaser shall use its reasonable best efforts to comply with all applicable national, federal, state, and local laws, rules, and regulations of regulatory agencies relating to the protection of Personally Identifiable Information and privacy rights associated with the Personally Identifiable Information.
Notwithstanding anything to the contrary contained in this Agreement and in addition to (and not in substitution for) Purchaser's other obligations hereunder, Purchaser shall, and shall cause its vendors, agents, representatives, and affiliates, to comply with the following Data Security Standards:
Store Personally Identifiable Information for no other purpose than to facilitate the performance of Services under this Agreement, and for only so long as is necessary to facilitate any applicable lending transactions;
Not disclose Personally Identifiable Information to any third party, including, without limitation, third party service providers, list managers, brokers, aggregators, and/or marketers;
Not use and/or disclose Personally Identifiable Information for any purpose other than to facilitate the performance of Services under this Agreement;
Purchaser shall use commercially reasonable best efforts to honor all consumer preferences, including but not limited to opt-out and opt-in requests, communicated to or received by Purchaser regarding the Personally Identifiable Information;
To the extent that Purchaser receives instructions regarding communication preferences, including but not limited to opt-out and opt-in requests, associated with the Personally Identifiable Information, Purchaser shall communicate such preferences to GRAB MARKETING, LLC within seven (7) days;
Maintain effective and commercially reasonable information security measures to protect the Personally Identifiable Information from unauthorized disclosure or use, including:
Using and regularly updating anti-virus software or programs;
Restricting access to the Personally Identifiable Information to a need-to-know basis;
Restricting physical access to the Personally Identifiable Information;
Conducting periodic audits of the security of its systems;
Installing and maintaining firewalls to protect the Personally Identifiable Information from unauthorized access; and
When destruction is required, destroying the data containing Personally Identifiable Information in accordance with global data security and privacy laws by employing commercially reasonable and secure methods that render the data unreadable, including but not limited to, cross-shredding of paper documents.
Provide GRAB MARKETING, LLC with information regarding Purchaser's own data security standards upon the reasonable request of GRAB MARKETING, LLC;
Change and update these Data Security Standards to remain consistent with material changes in standard industry practice and/or in response to reasonable requests by GRAB MARKETING, LLC; and
Purchaser shall provide notice to GRAB MARKETING, LLC within twenty-four (24) hours of the discovery of any breach in the security of unencrypted Personally Identifiable Information whether that failure or breach is suffered by the Purchaser or a third party. Purchaser shall, and shall cause its vendors, agents, representatives, affiliates, and any other party to whom Purchaser may provide the Personally Identifiable Information under this Agreement, work with GRAB MARKETING, LLC to rectify any issues that may result, including providing (or providing access to) all non-confidential information relevant to such breach or necessary to verify the ability of the party responsible for the breach to prevent future data breaches in a manner consistent with this Agreement.
Purchaser agrees to return to GRAB MARKETING, LLC all GRAB MARKETING, LLC-Owned Information in its possession within thirty (30) days of the termination of this Agreement and will not make or retain any copies of the GRAB MARKETING, LLC-Owned Information except as required to comply with any applicable legal or accounting record keeping requirement.
Records. Purchaser and/or the Lenders to whom Purchaser provides Leads purchased under this Agreement will maintain for at least three (3) years its records, contracts, and accounts relating to each loan transaction using the Personally Identifiable Information, and will permit examination not more frequently than once per calendar year of that information upon reasonable request by GRAB MARKETING, LLC and during normal business hours by an auditor.
System Security Standards. Purchaser shall use commercially reasonable best efforts to implement system security standards to protect the integrity of the systems with Confidential Information no less protective than the systems security standards set forth herein.
Definitions. In addition to any terms defined elsewhere in the Agreement, the following terms have the following meanings. Other capitalized terms used herein but not herein defined shall have the meaning set forth in the Agreement.
"Account" collectively refers to those elements of the System used to facilitate access of an end user to the System and associated with a particular User ID.
"Electronic Storage Media" means any tapes, disk drives, cartridges, or other non-volatile storage medium.
"Registration" means the process by which an individual is issued an account on the System.
"Strong Password" means an eight-character password containing upper or lower case alphabetic characters, at least one (1) special character, and at least one (1) numeric character.
"Support/Content Management User" means a user of the System(s) who will perform tasks to support, update, and maintain application-specific content and functionality specific to meeting the objectives of the Agreement including but not limited to graphical images, databases, reference documents, and web pages. Support/Content Management Users include but are not limited to Purchaser's support engineers and System support analysts.
"System" collectively refers to the applicable hardware, software, facilities websites, and services used to provide the Services as such term is defined in the Agreement.
"System Administrator" means a user of the System(s) who will perform tasks to the System(s) in order to meet the objectives of the Agreement including but not limited to account management, operating system support, disk space management, software upgrades, and system monitoring. System Administrators include but are not limited to Purchaser's System Administrator.
"Two Factor Authentication" shall mean an authentication scheme which relies upon two factors such as something the user knows and something the user possesses for authentication. Examples include RSA's SecurID™.
"User ID" means an identifier that uniquely identifies a user of a system.
General Security.
Unless specifically authorized by GRAB MARKETING, LLC, Purchaser must not use software or hardware tools that can break security mechanisms. Examples of such tools are those that facilitate illegal copying of copy-protected software, reverse engineering of code, discovery of secret passwords, deciphering of encrypted data, or monitoring of network traffic. Passwords, encryption keys, and any other information that may be used to weaken or circumvent the security controls described in this Agreement are confidential and must not be disclosed to any individual, unless such individual is otherwise authorized by GRAB MARKETING, LLC, following a security risk assessment performed by GRAB MARKETING, LLC, to access such information.
The following changes to the policy settings listed below should be logged and reviewed: Password policies, Account lockout policies, Screen saver/display policy settings
In addition, the following events must be logged: Domain policy changes, Domain trust changes, Audit log clearance, Security event log clearance, Audit policy changes
The logs shall be readily available in order to facilitate quick reaction to a security threat or breach. Copies of logs shall be retained for at least three (3) months.
GRAB MARKETING, LLC review of user accounts created for customer account support will be performed as part of the audit process. Purchaser is not required to have user requests approved by GRAB MARKETING, LLC's security team at the time of the request.
To protect Confidential Information, after fifteen (15) minutes of keyboard and mouse inactivity, it shall be necessary for a user to log in to his or her service location workstation using his or her User ID and password before viewing any Confidential Information.
Authentication and Authorization.
Purchaser shall provide a unique User ID (Account) for each System Administrator and Support/Content Management User and persons performing tasks of these roles of the System subject to the following conditions:
Authentication shall make use of Two Factor Authentication Technology.
All accesses to the System shall be logged.
Access logs to all network devices, servers, and other equipment necessary for this Agreement shall be maintained for a period of ninety (90) days where technically possible.
The Registration and privilege assignment process shall be documented and made available to GRAB MARKETING, LLC prior to utilization of the service.
Purchaser agrees to audit at least semi-annually the list of System Administrators and Support/Content Management Users and disable the access of those not required to accomplish the objectives of this Agreement.
Internet access shall be over secured channels (example: SSL or SSH).
Purchaser shall make available a unique User ID (Account) for each end user subject to the following constraints:
Authentication shall make use of Strong Passwords.
Password lifetime shall not be more than ninety (90) days.
Purchaser must audit password policy compliance at least semi-annually and report any weaknesses to GRAB MARKETING, LLC.
Purchaser must notify GRAB MARKETING, LLC of any compromised or suspected compromised passwords within twenty-four (24) hours of Purchaser becoming aware of such compromise.
Internet access shall be over secured channels (Ex: SSL or SSH).
Transmission and Storage of Confidential Information.
Where the transmission of Confidential Information across any communication medium susceptible to interception by any party other than the sender or intended recipient(s) is required to fulfill the terms of the Agreement, Purchaser shall at a minimum employ, for the communication medium utilized, generally accepted encryption technologies to minimize the risk of interception and/or disclosure. Encryption shall include the following or higher/better:
112-bit shared private keys or 1024-bit public/private key (RSA) with encryption algorithms equal to or higher than 3DES, RC4 or IDEA
Integrity-signed MD4 or SHA-1 hashes
Non-Repudiation using digital signatures
Where the storage of Confidential Information on any Electronic Storage Medium is required to fulfill the terms of this Agreement, Purchaser shall employ, for the medium utilized, generally accepted encryption technologies to minimize the risk of disclosure to those parties without an explicit need to know.
Event Logging and Notification.
Purchaser agrees to log the following system events:
Login failures
Administrative rights usage
System Administrator and Support/Content Management User logins
System shutdowns and restarts
Purchaser agrees to retain such log information for a period of ninety (90) days from the date of the event and to make such log information available to GRAB MARKETING, LLC upon reasonable request.
Logs shall be reviewed at a minimum on a weekly basis and anomalies shall be reported and action taken.
Purchaser shall notify GRAB MARKETING, LLC within twenty-four (24) hours of Purchaser becoming aware of each of the following types of incidents relative to meeting the objectives of the Agreement:
Virus infection
Compromise of electronic security
Compromise of physical security/theft of assets
Unscheduled outage or system unavailability
Security Patches and Virus Protection.
Purchaser agrees to install and maintain virus protection software on any equipment utilized in meeting the objectives of the Agreement.
Purchaser agrees to apply any vendor-provided virus definition updates within twenty-four (24) hours of availability from the virus software vendor.
Where technically feasible, Purchaser agrees to, within fifteen (15) days of availability from the software or hardware vendor, apply any available critical security patches to any equipment utilized in meeting the objectives of the Agreement.
Where technically feasible, Purchaser agrees to, within two (2) weeks of availability from the software or hardware vendor, apply any available critical security patches to any application software utilized in meeting the objectives of the Agreement.
Access Restrictions. Purchaser agrees to limit physical access to the equipment utilized in accomplishing the objectives of the Agreement to those parties directly involved with maintaining or supporting the equipment. Purchaser shall limit access to any Confidential Information, and to any System documentation specific to the objectives of the Agreement, to those parties directly involved with meeting the objectives of the Agreement. Upon termination of the Agreement, any such Confidential Information or System documentation shall be destroyed or otherwise rendered unreadable.
Equipment Sanitization. Purchaser agrees that upon expiration of the term of the Agreement or upon the replacement of any equipment utilized in meeting the objectives of the Agreement, Purchaser will return and render unreadable and unrecoverable all Confidential Information stored on any Electronic Storage Media before being redeployed for other uses of the Purchaser or, if being disposed of, before leaving the physical control of the Purchaser. This shall be done via seven pass extended character rotation or stronger destruction means to wipe Confidential Information from storage locations.
Audits, Penetration Testing & Security Weaknesses.
Purchaser agrees to perform the following audits and penetration tests with reasonable protection of Confidential Information and on-going service:
A yearly independent third-party penetration test on Internet-facing networks and to resolve or mitigate any critical findings within three (3) months of the final report.
A yearly internal security test/audit for physical and logical security weaknesses including operational systems/controls, networks, privacy, and personnel practices on all portions of the internal network containing or interfacing with Confidential Information on a yearly basis by an independent third party.
Purchaser agrees to provide an appropriate GRAB MARKETING, LLC contact upon request with results of critical findings which are not able to be mitigated or resolved within three (3) months of either the external penetration test or internal audits.
Purchaser agrees to ensure strict controls with limited access to auditing tools on Systems holding Confidential Information and that access to stated tools will be monitored and reviewed.
Purchaser shall report to GRAB MARKETING, LLC, as quickly as possible, any and all indications of potential weaknesses involving Confidential Information for high security risk situations including, but not limited to, weak privileged access passwords or unencrypted customer/GRAB MARKETING, LLC password files.
Extension of Protection.
Purchaser agrees to ensure that protection (maintenance, transmission, and destruction) of Confidential Information extends to parties having access to Confidential Information either via physical or logical means when part of operational processes. Protection shall cover responsibilities, liability, procedures for protection, etc. These shall include but not be limited to:
Security Organization & Incident Management.
Service interruptions shall be addressed in the manner set forth in the Agreement.
If a formal security incident is declared, there shall be procedures defined to ensure that proper reporting of such incidents occur in a timely manner, activities are logged, and evidence gathering is performed in a manner supporting potential legal use, and that these incidents are brought to the attention of GRAB MARKETING, LLC.
The information security organization shall ensure that policy ownership is at a level high enough to ensure enforcement and that appropriate ownership of policies, procedures and standards applies to all management, users, and administrators including contractors and third parties.
The security policy shall state corporate management's security philosophy and goals through executive level commitment to maintain the privacy, integrity, and availability of all corporate and customer information and assets.
Data Breach Notification Procedures. Purchaser shall maintain in place a process to monitor all access to Confidential Information and determine if security measures protecting Confidential Information have been breached. If Purchaser determines that access to Confidential Information has been breached or potentially breached, Purchaser shall immediately contain the breach to the extent possible and notify GRAB MARKETING, LLC of the type of breach (e.g., loss of a laptop, unauthorized system access). Purchaser shall work with GRAB MARKETING, LLC, in accordance with the direction set by GRAB MARKETING, LLC, in identifying the manner in which the data was compromised, the type of data that was compromised, the names of affected customers or employees, and whether any person acted purposefully to cause a data security breach. GRAB MARKETING, LLC shall be responsible for determining if notification needs to be provided to those affected or potentially affected by such breach, and whether notification needs to be provided to law enforcement. In the event of a data security breach, all requests from the press shall be directed to GRAB MARKETING, LLC, and Purchaser shall not communicate with any third party concerning the data security breach without the prior consent of GRAB MARKETING, LLC. Purchaser shall cooperate with GRAB MARKETING, LLC at all times in remedying a data breach and provide GRAB MARKETING, LLC with all information requested related to the breach or potential breach.
Antivirus Patches and Updates. Purchaser shall install and monitor up-to-date antivirus software, configurations, and pattern files on all computing devices connecting to GRAB MARKETING, LLC's data/network. Antivirus software on such computers must be active at all times and not turned off, disabled, or unloaded. Purchaser shall ensure that antivirus pattern file updates will be automatically deployed to all devices connecting to GRAB MARKETING, LLC's network promptly after receipt of the pattern update files from GRAB MARKETING, LLC or the antivirus software vendor. Antivirus pattern file updating shall be considered normal operations and shall not require use of change protocols established by the Parties. GRAB MARKETING, LLC shall have the right to disconnect from data/network any of Purchaser's computing devices found not to have up-to-date antivirus software or pattern files, or for which antivirus software is improperly configured.
Physical & Operations Security.
Equipment shall be sited and protected to ensure reduced risks of interference and unauthorized access. Stated equipment protection shall include, but not be limited to:
Caging, cabling, or other segregated means in secured areas
Proper fire and water protection should be adequate
Access to equipment shall be protected such that:
Visitor access shall be only upon approval, signed-in and escorted by personnel approved for access.
Use of key locks and/or passcodes as well as alarms and video inspection shall be used.
Use of key locks, alarms, passcodes, biometrics, as well as video inspection shall be used.
Biometrics may be used as deemed necessary by the Purchaser.
Combinations/key locks shall be periodically changed and a documented list of authorized personnel with entry access available.