This Advertising Agreement, together with any applicable insertion order (IO) (collectively, this Agreement) is entered into and effective as of ________________, 2017, by and between R.U Accountable L.L.C., an Arizona limited liability company dba eCommDivas, with offices located at 6501 E Greenway Pkwy 103-462, Scottsdale, AZ 85254 (Agency/Network), and _______________________________, whose principal place of business is located at _______________________________________________ (Advertiser).
Capitalized terms not otherwise defined in these Terms shall have the meaning ascribed to them elsewhere in the Agreement. Therefore, in consideration of the mutual covenants of the parties and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties agree as follows:1.Definitions: 1.1 Advertiser means the advertiser identified by the applicable Insertion Order (IO). 1.2 Advertising Material means any image, text, sound, video or other content used as, or as part of, an Advertisement that is provided, selected or approved by Advertiser. 1.3 Advertisements means, but are not limited to (a) the display (or in the case of sound, emitting) of traditional on-line advertisements, such as banner ads, graphic or text files, buttons, links, clicks, co-registrations, pop-ups, pup-unders, e-mails, tests and any other electronic promotion or similar online media; (b) inserting Advertising Material into contextually relevant websites or other Internet Properties; (c) sending e-mail containing Advertising Material; (d) purchasing keywords on search engines; (v) hosting webpages specially designed to rank highly on search engines; and (e) social media display advertising. 1.4 Agency/Network means eCommDivas. 1.5 Campaign means one (1) or more Advertisements promoting the Website (defined below), Advertiser's products, services offers and/or Advertising Material, as specified in the IO. 1.6 Compensable Transaction means a User (defined below) has completed the act requested by Advertiser, which may include, without limitation, sales, leads, unique sign-ups, applications, accounts, clicks, impressions or other compensable activities that will apply for each Campaign. 1.7 Internet Property means any Internet-aware forum, software application or platform by or through which Users (defined below) may view, access or interact with content, including, without limitation, content that may include advertisements. Examples of Internet Properties include, but are not limited to, web pages, on-line applications, toolbars, social media applications, web-related technologies that contain or transmit content to Users (e.g., Adobe Flash), mobile applications (sometimes called apps), e-mail lists, newsletters or other platforms that transmit electronic messages or mail, and Internet-aware computer applications. 1.8 Prohibited Materials means, as may be determined in Agency/Network's sole discretion: (a) pornography or sexually explicit or offensive content, (b) materials that promote or glorify violence, firearms, or other weapons, (c) materials communicating hate or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, (c) materials promoting illegal activities; (d) materials promoting gambling or sales or use of alcohol, tobacco or firearms (unless explicitly permitted in the Insertion Order), (e) profane or obscene language, (f) materials that infringe or violate the rights of others (including copyright, trademark, trade secret, privacy and/or publicity rights), (f) defamatory, libelous, obscene, offensive or harmful material, (g) materials that violate any applicable laws, regulations or self-regulatory guidelines relating to online advertising or promotions, including, without limitation, the CAN-SP AM Act of 2003 and its implementing and interpretive regulations and guidances (collectively, "CAN-SPAM"), laws and regulations relating to unfair or deceptive advertising practices or consumer fraud, laws and regulations relating to Spyware, adware or malware, laws and regulations relating to online privacy and/or data security, and laws and regulations relating to online sweepstakes and contests, and (h) materials that, in Agency/Network's opinion, otherwise violate this Agreement. 1.9 User means any person accessing the Website and/or Advertiser products, services, offerings, Advertisements or Advertising Material. 1.10 Website means Advertiser's Website or Websites offering the Campaign being promoted by Agency/Network. 2. The Parties Responsibilities: 2.1 Agency/Network Responsibilities. Advertiser may execute IOs, including, but not limited to, at the time this Agreement is executed by the parties, that direct Agency/Network to promote, on Advertiser's behalf, Campaigns. Upon execution of an IO, Agency/Network will deliver such Campaigns in accordance with the requirements of the IO and this Agreement. 2.2 Agency/Network's Rights. Without limitation of any kind to any other right Agency/Network may have under or pursuant to this Agreement, Agency/Network expressly reserves the right to: (a) refuse any advertising request, to cancel any Campaign or to modify or change any Campaign that does not conform to every material detail, instruction, method and guideline set forth in the applicable IO; (b) refuse any Campaign that is not delivered to Agency/Network at least forty-eight (48) hours prior to the start date; (c) refuse or cancel any Campaign that it deems, in its reasonable discretion, violates an applicable foreign, federal, state or local law or regulation; or (d) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason, including, without limitation, any such item it believes, in its reasonable discretion, is or may be (i) an invasion of privacy, degrading, libelous, unlawful, profane, obscene, pornographic, something that tends to ridicule or embarrass or is in bad taste, (ii) an infringement on a trademark, trade name or copyright belonging to others, or (iii) is otherwise inappropriate. Furthermore, all Campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, creative performance and market pricing limitations. A Campaign rejected by Agency/Network may be replaced by Advertiser, provided that any such replacement must be in writing and accompanied by appropriate material identifying the Campaign that it is to replace. 2.3 Advertiser Responsibilities. Advertiser will provide Advertising Materials to Agency/Network in the form of ready-to-use Advertisements or in the form of various logos, pictures, text or other creative material. Agency/Network may not alter or edit any Advertising Materials or Advertisements, except to the extent necessary to properly post or distribute such materials or advertisements, or to create new Advertising Materials or Advertisements, or to distribute or display such Advertising Materials or Advertisements, except with Advertiser's prior approval, which may be granted or withheld in Advertiser's reasonable discretion. Any Advertising Materials or Advertisements provided, selected or approved by Advertiser shall not contain any Prohibited Materials. 3. License Granted to Agency/Network: Advertiser hereby grants Agency/Network and its third-party publishers a world-wide, non-exclusive, non-transferable, revocable, limited, royalty-free license to use, copy and distribute the Advertising Materials and Advertisements. If Agency/Network creates any derivative works from the Advertising Materials or Advertisements (upon the written consent of Advertiser), Agency/Network shall retain all ownership rights (including all copyrights) in those derivative works. 4. Exclusivity: In the event and to the extent Advertiser has agreed to give exclusive distribution rights to Agency/Network in an IO with regard to any Campaign (each an Exclusive Campaign), Advertiser shall not, without the prior written consent of Agency/Network, engage in or be involved with advertising, marketing or distributing of any products subject to the Exclusive Campaign for a period commencing on the date of the applicable IO and ending on the end date of the IO. Advertiser acknowledges and agrees to the following: (a) the foregoing time restrictions are reasonable; (b) the foregoing restrictions will not impair Advertiser's ability to promote and further its business model, and (c) in the event of any breach of this exclusivity covenant, the exact amount of damages Agency/Network would incur as the result of any such breach would be difficult to calculate or ascertain and, accordingly, upon the occurrence of any such breach, Agency/Network will be entitled to obtain, at its option, a temporary restraining order, preliminary injunction and/or permanent injunction, without bond, restraining Advertiser from engaging in any activity that is prohibited by this section, without prejudice, however, to Agency/Network's right to recover damages to the extent they can be calculated or ascertained and all of its costs of enforcement, including reasonable attorney fees. 5. Payment. Unless otherwise provided in an IO, Advertiser shall pay all fees for Compensable Actions to Agency/Network no later than five (5) calendar days from the date of an invoice for payment of such fees. All accounts will be paid in US Dollars ($US). All payments are based on actual figures as defined, accounted and audited by Agency/Network. All domestic and international wire fees are the responsibility of Advertiser. If applicable, Advertiser is liable for payment of Advertiser's account based on any additional instructions specified in an IO. In the event that Advertiser does not pay Agency/Network as set forth herein and Agency/Network is unable to fulfill its monetary obligations to the applicable publisher, Advertiser agrees that it will promptly and without the necessity of demand or notice pay such obligations and assign in writing its right to be paid by the publisher to Agency/Network. Further, in the event Advertiser does not pay Agency/Network five (5) calendar days from the date of an invoice, such payment shall be considered late and subject to interest at the rate of one and one half percent (1.5%) per month, or the highest rate allowable by law, whichever is less. 6. Reporting Requirements. Advertiser agrees to provide a month's end summary report reflecting the exact number of Compensable Transactions recorded for the preceding month. Agency/Network, in its reasonable discretion and by consultation with Advertiser, will determine the form of said reports. Advertiser will be obligated to retain books and records pertaining to such matters and other data necessary to compute charges owed to Agency/ Network for at least one (1) year after the conclusion of each Campaign. Agency/Network will have the right to audit such books and records upon request. If the audit reveals an underpayment, Advertiser will promptly pay Agency/Network any such underpayment, together with past due interest charges and/or late fees from the time originally due until paid. If the amount of the underpayment is more than five (5%) percent, Advertiser will also be obligated to pay to Agency/Network its reasonable audit costs. 7. Offset or Chargeback. No offset or chargeback may be taken by Advertiser for any non-viable or duplicate leads. Agency/Network may, in its sole discretion, determine what constitutes a non-viable or duplicate lead. Without limitation, non-viable leads shall include only leads with incomplete contact information (no email address, no phone number, and no physical address); leads from non-United States residents, unless such leads are expressly permitted in the IO, or leads from consumers under the age of 18. It is the responsibility of Advertiser to insure the accuracy of all lead request information in the IO. Agency/Network may, in its sole discretion, replace a non-viable lead upon its determination of a non-viable lead, and Advertiser agrees this is its sole remedy for receipt of a nonviable lead. 8. Tracking. Unless otherwise stated in an IO, Agency/Network shall be responsible for the exclusive tracking of Compensable Actions for all purposes relating to this Agreement, including for determining amounts owed to Agency/Network. In the event Advertiser disputes Agency/ Network's calculations, Advertiser shall provide written notice to Agency/Network of any such dispute within two (2) days of the date of the applicable invoice. Any calculations not disputed within the two (2) day time period shall be deemed an unqualified acceptance of Agency/Network's final calculations by Advertiser. In the event Advertiser timely notifies Agency/Network of a dispute, Agency/Network and Advertiser shall work in good faith to resolve any such dispute. 9. Term and Termination. This Agreement will begin as of the date set forth above upon full execution of this Agreement (the Effective Date) and will continue in effect unless and until terminated by either party at any time for any reason upon sixty (60) days prior written notice to the other party. Notwithstanding the foregoing, this Agreement may be terminated by Agency/Network at any time, effective upon service of Notice of Termination for Cause, defined as the occurrence of any one of the following events: (a) Advertiser's material breach of this Agreement that is not cured within five (5) from the date demand is made to perform the terms of this Agreement; (b)Any act or omission of Advertiser that violates or, in Agency/Network's opinion, may violate any foreign, federal, state or local law or regulation; (c) Conduct on the part of Advertiser that, in Agency/Network's opinion, is materially injurious, disparaging or embarrassing to Agency/Network and/or its principals or employees; or (d) Advertiser's dishonesty, duplicity, circumvention or, in Agency/Network's opinion, a lack of good faith in performing this Agreement. 10. Advertiser's Representations and Warranties. Advertiser represents and warrants that: (a) it is the owner of or is licensed to use the Advertising Materials, Advertisements and Website and to license the same to Agency/Network hereunder, and such Advertising Materials, Advertisements and Website do not and will not (i) violate any foreign, federal, state or local law, rule or regulation, (ii) violate or infringe upon any third party's patent, trademark, copyright or other third party intellectual property right, or (iii) contain any Prohibited Material; and (b) Advertiser, in the performance of its obligations hereunder will not (i) violate any foreign, federal, state or local law, rule or regulation, or (ii) violate or infringe upon any third party's patent, trademark, copyright or other third party intellectual property right. 11. Agency/Network's General Disclaimer of Warranties. AGENCY/NETWORK DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPLIANCE WITH LAW, SECURITY, ABSENCE OF VIRUSES OR OTHER MALICIOUS SOFTWARE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FURTHERMORE, AGENCY/ NETWORK EXPRESLY DOES NOT WARRANT, AND THEREFORE DISCLAIMS, THAT ADVERTISER'S USE OF AGENCY/NETWORK'S SERVICES WILL RESULT IN ANY PARTICULAR RESULTS. 12. Limitation of Liability. IN NO EVENT SHALL: (A) AGENCY/NETWORK BE LIABLE TO ADVERTISER IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, LOST PROFIT OR INDIRECT DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE; OR (B) AGENCY/NETWORK'S AGGREGATE LIABILITY TO THE ADVERTISER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID TO AGENCY/NETWORK HEREUNDER IN THE THREE (3) MONTHS PRIOR TO THE OCCURRENCE GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. 13. Indemnification. Advertiser hereby agrees to defend, indemnify and hold Agency/Network, its subsidiaries, affiliates and related entities, and any of its principals, officers, directors, employees and agents, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including, but not limited to, attorney fees and costs) suffered, sustained or incurred by Agency/Network in connection with any claim, action or proceeding arising out of, or otherwise related to: (a) any claim that the Advertising Materials, Advertisements or Website (i) violate any foreign, federal, state or local law, rule or regulation, (ii) violate or infringe upon any third party's patent, trademark, copyright or other third party intellectual property right, or (iii) contain any Prohibited Material, (b) any claim that Advertiser has violated any foreign, federal, state or local law, rule or regulation or violates or infringes upon any third party's patent, trademark, copyright or other third party intellectual property right in the performance of its obligations hereunder, (c) any breach of this Agreement by Advertiser, including but not limited to any representation and warranty contained hereunder, or (d) the negligence, recklessness, intentional misconduct, or any act or omission of Advertiser. 14. Non-Circumvention. Advertiser recognizes that Agency/Network has proprietary relationships with other advertisers, publishers, affiliates, clients, customers, suppliers and vendors (collectively, the Protected Parties). Advertiser agrees not to circumvent Agency/ Network's relationship with any of the Protected Parties or otherwise solicit, induce, recruit or encourage, directly or indirectly, any of the Protected Parties for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to either party's services herein during the term of this Agreement and for the one (1) year period (the Non-Solicitation Period) following termination or expiration of this Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show via written documentation that any Protected Party already obtained or, where applicable, provided such services from/to Advertiser prior to the Effective Date of this Agreement, Advertiser shall not be prohibited from continuing such relationship, provided that, in doing so, Advertiser does not circumvent Agency/Network's relationship with the Protected Party or attempt to induce the Protected Party in any way to reduce the amount of business it conducts with or amount of service it provides to Agency/ Network. Without limiting any other right or remedy of Agency/Network under this Agreement or applicable law, including but not limited to the availability of injunctive relief, if Advertiser should violate this Section, then, as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Agency/Network shall in all cases be entitled to a monetary compensation equal to (i) the net profit resulting from the reduction in the business between Agency/Network and such Protected Party as a result of Advertiser's breach of this Section, and (ii) any and all expenses, including attorney fees, incurred to enforce this provision. 15. Confidential Information. Advertiser hereby agrees to the following: 15.1 Definition of Confidential Information. Confidential Information means any non-public information that is not generally known by a party's competitors and that is (a) a protectable trade secret, or (b) information that belongs to, is unique to and is reasonably maintained as confidential by that party, regardless of the format or method of storing or communicating any such trade secret or information maintained as confidential (including any information that is stored or communicated via electronic or internet systems or in cloud format), including, without limitation, the following:
(a)A party's financial information regarding sales, profits, projections of sales or profits or costs of doing business that qualifies as Confidential Information;
(b)Any methods or procedures that a party employs to conduct its business or to perform this Agreement that qualifies as Confidential Information;
(c) Any business or marketing system, billing procedure or practice, method or policy, any customer service procedure, practice, method or policy, and any business practice, procedure, method, policy, strategy, acumen, technique or know-how developed, owned or used by a party that qualifies as Confidential Information;
(d)Specifically, but without limitation, a party's proprietary products, designs and manufacturing and fabrication processes that qualify as Confidential Information;
(e)A party's current or planned expansion, marketing or promotion plans or strategies that qualify as Confidential Information;
(f) A party's customer or client information, including customer or client lists, profiles, leads or requirements, and its referral sources, prospecting information, price lists, and cost information that qualifies as Confidential Information;
(g)A party's vendor or supplier information, including vendor or supplier lists, leads, discounts, requirements or prices, that qualifies as Confidential Information;
(h)A party's intellectual property, including, without limitation, any and all documents, manuals, designs, training materials, computer software, computer systems and other materials, that qualifies as Confidential Information; and
(i)A party's forms that have been created by that party and made available to the other party that qualify as Confidential Information.15.2 No Proprietary Interest. Agency and Advertiser agree that they do not have any proprietary interest in, and shall not assert or claim any proprietary interest in, any matter comprising Confidential Information of the other party. 15.3 No Disclosure or Use of Confidential Information. Agency/Network and Advertiser shall not at any time, or at any time thereafter until such time as the Confidential Information or any portion thereof is no longer confidential or protectable as a trade secret, directly or indirectly or without the prior written consent of the other party: (a)Make known or disclose any Confidential Information to any person or entity, except as authorized in writing in connection with either party's performance of the terms of this Agreement; or (b)Use, utilize, remove, retain, duplicate or copy any Confidential Information for any purpose other than as authorized in writing in connection with either party's performance of the terms of this Agreement; or (c) Compete against the other party, directly or indirectly, with the use or aid of any Confidential Information of the other party. 15.4 Return of Confidential Information upon Termination of Employment. Immediately upon expiration or termination of this Agreement for any reason, Agency/Network and Advertiser shall immediately, without the necessity of notice or demand, return to the other party any and all Confidential Information (including any copies thereof), in whatever form, that is in their possession or control. 15.5 Enforcement of this Section. Agency/Network and Advertiser acknowledge and agree that the covenants in this section are reasonable in duration and scope, but that, in the event any such covenant, or any grammatically severable part thereof, is determined to be invalid or unenforceable, in whole or in part, a court or arbitrator shall nevertheless have the right and authority to enforce any other covenant or, as the case may be, any grammatically severable part of any covenant that is valid and enforceable to that extent. 15.6 Remedies for Breach. Agency/Network and Advertiser agree that, in the event either party breaches any of the foregoing covenants or obligations, the exact amount of damages the non-breaching party would incur as the result of any such breach would be difficult to calculate or ascertain. Upon the occurrence any such breach, therefore, they agree that the non-breaching party will be entitled to obtain, at its option, a temporary restraining order, preliminary injunction and/or permanent injunction, without bond, restraining the breaching party from engaging in any activity prohibited by this section. Any such remedy, however, shall be nonexclusive and without prejudice to the non-breaching party's right to recover its damages to the extent they can be calculated or ascertained and all of its costs of enforcement, including reasonable attorney fees. 15.7 Survival of Obligations. The foregoing obligations shall expressly survive the expiration or termination of this Agreement and may be enforced at any time, regardless of the expiration or termination of this Agreement. 16. Independent Contractor. The parties agree that they are independent principals. This Agreement shall not be construed to create any employment relationship, partnership, joint venture or agency relationship of any kind between the parties or to authorize a party to enter into any commitment or agreement binding the other. 17. Personal Guaranty. As a condition precedent to credit extension to Advertiser, the undersigned officer, director or owner of Advertiser hereby personally guarantees to Agency/ Network the prompt and full payment of all monies now or hereinafter due to Agency/Network from Advertiser. This personal guaranty is unlimited as to amount or duration and will remain in full force and effect notwithstanding any extension, compromise, adjustment, forbearance, waiver, release or any discharge of Advertiser or any other guarantor, in whole or in part, and the undersigned waives all notices thereto. 18. Miscellaneous Provisions: 18.1 Assignment. Neither party may assign any portion of this Agreement. 18.2 Successors and Assigns. This Agreement is binding upon, and inures to the benefit of, the parties, their heirs, executors, administrators, successors and assigns. 18.3 Severability. Except as otherwise may be expressly provided herein, all provisions, obligations and covenants contained in this Agreement are severable. In the event any one or any part of one is found to be illegal or invalid, this Agreement shall nevertheless remain in full force and effect and be interpreted as though such illegal or invalid provisions or covenants were not contained in this Agreement. 18.4 Waivers, Extensions. No waiver of any term, condition, covenant or provision contained in this Agreement may be deemed a waiver of any preceding or succeeding breach of this Agreement or of any other agreement. No extension of time for performance of any obligation or act may be deemed to be an extension of time for performance of any other obligation or act. Either party may enforce, or not enforce, any term or covenant contained in this Agreement at its option, and doing so, or not doing so, shall not create a binding precedent or prevent it from doing so, or not doing so, in the same or substantially similar circumstance that may occur after doing or not doing so. No failure or delay by either party in exercising or enforcing any right under this Agreement may create any custom or constitute a waiver, nor shall any single or partial exercise of any right by either party preclude any other exercise thereof or of any other right. 18.5 Entire Agreement. The parties agree that this Agreement is their entire, accurate and complete understanding and agreement. No other representations, promises or agreements, oral or written, not expressly set forth in this Agreement shall be of any force or effect whatsoever. Any modification or waiver of any term of this Agreement, including any modification or waiver of this section, must be in writing and signed by the party to be bound by any such modification or waiver. 18.6 Counterparts. This Agreement may be executed simultaneously or in multiple counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. 18.7 Electronic Signatures. The signature of a party on a telefaxed or electronically transmitted document will be considered, for all purposes, an original signature, and the delivery of a document by telefax or electronic transmission will have the same effect as delivery of the original document. At the request of any party, the other party will confirm a facsimile or electronic transmission by signing a duplicate original document. 18.8 Governing Law and Venue. This Agreement shall in all respects be governed by, interpreted under and construed and enforced in accordance with the laws of the State of Arizona. The venue and location of any action or proceeding regarding matters arising out of or related to this Agreement shall be brought and determined solely in a state court located in Maricopa County, Arizona. 18.9 Attorney Fees. In the event of any litigation, arbitration or proceeding concerning matters arising out of or that are related to this Agreement, the substantially prevailing party will be entitled to recover reasonable costs, expenses and fees, including attorney fees and expert witness fees, incurred therein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
AGENCY/NETWORK: R.U. Accountable, LLC, an Arizona Limited Liability Company dba eCommDivas,
Michelle Steingard , its Manager