Master Campaign Agreement
MASTER CAMPAIGN AGREEMENT
- 1.1 This "Master Campaign Agreement" (or "Agreement") is between each Advertiser and Media Partner (each a "Party" and collectively the "Parties") that enters into a performance marketing relationship using the Platform owned and operated by Impact Tech, Inc. ("Impact") and hosted from the URL, www.impact.com. Schedule 1 attached hereto or as amended by written agreement of the Parties and each "EIO" (as defined below) are fully incorporated into the terms of this Agreement. In order to use the Platform Advertiser and Media Partner must scroll down, read and agree to all the terms and conditions in this Agreement by clicking through on the button marked "Accept" below.
- 1.2 The Agreement is a framework agreement and does not commit either the Media Partner or the Advertiser to any specific terms of performance. Unless the Parties supersede or modify Schedule 1 (General Terms and Conditions), Schedule 1 shall also apply between the Parties. As used herein, Schedule 1 shall refer to the template Schedule 1 attached or (as applicable) its replacement. Each EIO and any modified Schedule 1 must contain commercially reasonable and industry standard terms, and terms that can be accommodated by the functionalities and capabilities of the Platform from time to time.
- 1.3 The Parties shall agree specific terms of engagement in each individual "Electronic Insertion Order" ("EIO"). EIOs contain any supplemental terms and conditions agreed between the Advertiser and Media Partner and are created using the "Insertion Order" function on the Platform. The EIOs shall specify the "Actions" and qualifying parameters that entitle Media Partner to compensation from the Advertiser ("Payouts"). Impact Radius shall not be a party to the Agreement, Schedule 1 and/or EIOs. The terms of the EIOs are strictly between Media Partner and Advertiser. Each executed Electronic Insertion Order together with the Agreement and Schedule 1 will constitute a separate contract between the Media Partner and the Advertiser. Please print a copy of these documents for future reference.
- 1.4 Entry into an Agreement, Schedule 1 and EIOs is subject to Media Partner and Advertiser each being and continuing to be a party to a contract with Impact Radius permitting them to use the Platform.
2. Entering into Electronic Insertion Orders
- 2.1 Upon execution of an EIO, Media Partner may promote Advertiser in consideration for Payouts. The Parties acknowledge and agree that: either Party may propose an EIO in the "Insertion Order" section of the Platform interface and that the Platform’s functionality may then be used by the Parties to decline, retract or further modify an EIO before acceptance. EIOs become legally enforceable rights and obligations on the Parties upon acceptance. An EIO may only subsequently be varied by mutual agreement of the Parties. If the Parties utilize other forms of insertion orders, Schedule 1 must reflect the Parties ability to do so and the Parties are responsible for implementing the appropriate settings on the Platform to conform with such agreed upon terms.
- 2.2 Media Partner makes no guarantee or representation that the Services will generate any Action(s). Advertiser makes no guarantee or representation that the Media Partner will be successful in earning any Payouts under any EIO where the terms are contingent upon pay-for-performance.
- 2.3 Maximum Spend Limits and Number of Action Caps: The Parties acknowledge that the Advertiser in an EIO may set maximum spend limits and caps on the number of Actions that entitle the Media Partner to Payouts.
3. Term and Termination
- 3.1 EIOs: Each individual EIO shall continue until the earlier of:
- (a) a Media Partner terminating the EIO using the Platform interface;
- (b) Advertiser terminating an EIO for convenience pursuant to the terms of an EIO including notification requirements using the Platform interface;
- (c) Advertiser terminating when Advertiser’s budget has been met;
- (d) either Party terminating this Agreement or an EIO for breach by the other Party;
- (e) a Party terminating an EIO during the ‘Change Notification Period’ if the Party does not agree to the other Party’s proposed changes;
- (f) the date of expiration specified in the EIO;
- (g) Impact Radius removes Media Partner/Advertiser relationship or terminates the EIO; or
- (h) a Party is no longer eligible to use the Platform. An EIO shall specify whether there is a cure period for breach prior to termination.
- 3.2 Consequences of Termination: On the expiration or earlier termination of each EIO:
- (a) the Media Partner shall refund the Advertiser any monies in relation to unfulfilled obligations that the Advertiser has paid the Media Partner in advance in relation to an EIO;
- (b) the Advertiser shall remain obligated to compensate the Media Partner for Payouts earned prior to expiration or termination of the EIO;
- (c) the Media Partner shall immediately discontinue the provision of its Services and use of all content and material provided by Advertiser for use in connection with EIOs ("Creative");
- (d) license to the Creative shall terminate; and
- (e) each Party shall either destroy or promptly return to the other Party all copies in whatever medium of the other’s Confidential Information.
- 4.1 Force Majeure: "Force Majeure" means circumstances beyond the reasonable control of a party, including but not limited to acts of God, war, terrorist action, fire, flood, governmental act Internet or other telecommunications failure. Neither party shall be liable to the other party for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of Force Majeure. If a party becomes aware of a Force Majeure event, such party shall immediately notify the other party in writing. If the event of Force Majeure continues period in excess of three (3) weeks, then either party may terminate this Agreement by written notice to the other party with immediate effect.
- 4.2 Entire Agreement: This Agreement represents the entire understanding and constitutes the entire agreement between the Parties in relation to their subject matter, supersede any previous agreement between the Parties as to such subject matter, and may be amended only in writing and executed by both parties (which may be pursuant to Section 4.3). Each of the Parties shall acknowledge and agrees that it has not relied on any representation or warranty other than those expressly set out in this Agreement, Schedule 1 and each EIO.
- 4.3 Electronic Signatures: You acknowledge and agree that by clicking through acceptance of this Agreement, EIOs, and other clickthrough offers from the other Party on the Platform; You are submitting a legally binding electronic signature and are entering into a legally binding contract. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PLATFORM. Further, You hereby waive any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of nonelectronic records, or to payments or the granting of credits by other than electronic means.
- 4.4 Severability: If any provision in this Agreement, Schedule 1 or an EIO is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this Agreement and the enforceability and validity of the remainder of this User Agreement shall not be affected. The parties shall in good faith attempt to modify any invalidated provision or part to carry out the parties' stated intentions.
- 4.5 Survival: All provisions that by their sense and context are intended to survive the termination or expiration of this Agreement, including any rights arising out of a breach of this Agreement, shall survive the termination or expiration of this Agreement.
- 4.6 Relationship of the Parties: The relationship of the Parties is that of independent contractors and this Agreement does not create any association, partnership, joint venture or agency relationship between them. Neither Party shall have the power to bind the other or to create a liability against the other in any way.
General Terms and Conditions
This Schedule 1 applies as between Advertiser and Media Partner unless superseded in whole or part by written agreement of the Parties.
1. General Terms
- 1.1 Any defined terms used in each EIO shall (unless otherwise stated) have the same meaning as set out in the Agreement or this Schedule 1.
2. Intellectual Property and Confidential Information
- 2.1 License. For the purposes only of the Media Partner providing its Services, the Advertiser grants to the Media Partner (and its permitted users) for the duration of each EIO a non exclusive, nontransferable, worldwide, royalty free license to use the advertising content ("Creative") supplied by the Advertiser through the Platform to the extent necessary only for the Media Partner to perform its obligations under each EIO.
- 2.2 Promotional Methods. Media Partner must promote Advertiser using only those methods approved or prescribed by the Advertiser. Unless explicitly authorized in an EIO, Media Partner shall not promote an Advertiser using the following means:
- (a) provision of leads obtained other than through intended consumer ("End User") action (e.g. through the use of phone books, or similar such compilations of personal data);
- (b) use of fake redirects, automated software, or other mechanisms to generate Actions; or
- (c) Actions that are caused that are not in good faith, such as those using any device, robot, Iframes or hidden frames. If Media Partners intend to use incentives to promote Advertiser and procure clicks, leads or sales, Media Partner is required to notify Advertiser prior to executing an EIO with Advertiser, and Media Partner’s use of incentives must be in a bona fide way.
- 2.3 Misuse of Creative: The Parties acknowledge and agree that if the Advertiser notifies Media Partner of misuse of its Creative by the Media Partner then the Media Partner shall take immediate corrective action.
- 2.4 Intellectual Property: "Intellectual Property" means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in confidential information and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals). All Intellectual Property existing prior to the commencement date of each EIO shall belong to the Party that owned such rights immediately prior to such date. Each Party acknowledges and agrees that it shall not acquire or claim any title to the other Party’s Intellectual Property.
- 2.5 Confidential Information. "Confidential Information" means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, customers, prices, discounts, and margins. A party receiving Confidential Information ("Receiving Party") from the other party ("Disclosing Party") agrees to agrees to
- (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information;
- (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement;
- (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and
- (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same. The foregoing obligations shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: was already known to it, free of any obligation to keep it confidential; is or becomes publicly known through no wrongful act of the Receiving Party; was received from a third party without any restriction on confidentiality; was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or is approved for release by prior written authorization of the Disclosing Party. If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each party shall bear its own legal expenses in connection therewith.
- 3.1 Tracking Actions and Calculating Payouts: Unless an EIO states otherwise, all tracking and payment processing facilities in relation to the tracking of Actions and calculation of Payouts shall be provided by Impact Radius. Impact Radius shall aggregate payments due from Advertisers to the Media Partner and make payments to the Media Partner in accordance with each EIO. If tracking is disabled as a result of the Advertiser’s acts or omissions and the Advertiser continues to receive traffic from the Media Partner then the Advertiser shall be obliged to pay Payouts on a fair and reasonable basis taking into account appropriate factors.
- 3.2 Chargebacks: An Action can be cancelled or returned by the Advertiser ("Chargeback") if:
- (a) the Action is incomplete;
- (b) if a customer has cancelled or returns an Action;
- (c) if the Action has been made fraudulently or in an otherwise non bona fide manner;
- (d) if the Action is carried out by a person who is outside the area serviced by the Advertiser; or
- (e) if the Advertiser is unable to ship goods to a customer in relation to the Action. Each EIO shall state the period of time within which the Advertiser may apply a Chargeback.
4. Representations, Disclaimers and Indemnification
- 4.1 Representations and Warranties:
- (a) Each Party warrants, represents and undertakes to the other Party in relation to each EIO that: (i) it has the full power and authority to carry out the actions contemplated under each EIO; (ii) its entry into and performance of its obligations under the terms of the EIO shall not infringe the rights of any third party or cause it to be in breach of any obligations to a third party; (iii) in relation to all EIOs and at all times in using the Platform it shall comply fully with any and all applicable Laws.
- (b) The Media Partner represents and warrants to the Advertiser that the Services shall be performed in a professional manner and with reasonable skill and care.
- 4.2 Indemnification: Subject to Section 4.3, each party ("Indemnitor") shall defend, indemnify and hold the other party and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including court costs and reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties ("Claims") for the Indemnitor's breach of this Agreement and for breach of a third party's Intellectual Property rights, provided that:
- (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim;
- (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and
- (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.
- 4.3 Limitations of Liability:
- (a) Nothing below shall operate to exclude or limit liability for which liability cannot be excluded or limited under law (together the "Excluded Losses").
- (b) Except in respect of the Excluded Losses, the liability of each Party to any other Party in contract, tort (including negligence or breach of statutory duty, misrepresentation or otherwise) or for any other common law or statutory cause of action or otherwise arising by reason of or in connection with this Agreement and each EIO shall be limited to the Payouts fees paid by Advertiser to Media Partner through Impact Radius pursuant to EIOs.
- (c) Except in respect of the Excluded Losses, neither Party shall be liable to the other in contract, tort (including negligence) or otherwise for any: any loss of actual or potential profits, contracts or customers; loss of data and undertaking data or other restoration; loss of reputation; any other indirect, consequential, special, punitive, exemplary damages whether arising from negligence, breach of contract or otherwise.
- 5.1 Waiver of Remedies: No forbearance or delay by either Party in exercising or enforcing the provisions of this Agreement or an EIO shall prejudice or restrict the rights (whether provided by this Agreement, an EIO or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this Agreement, an EIO or at law) and each such right, power or remedy shall be cumulative.
- 5.2 Assignment: Either Party may assign any or all of its rights under this Agreement or an EIO, or transfer or subcontract any or all of its obligations under this Agreement or an EIO, upon notification to the other Party, subject to the nonassigning Party’s right to terminate.
- 5.3 Audit rights: Each Party agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter. Copies of such records shall be made available to the other party upon written request. An officer of the party supplying the records shall certify the authenticity of the copies.
- 5.4 Notices: All notices which are required to be given under this Agreement shall be in writing. Notices of termination of an EIO by Advertiser for convenience shall be made via the Platform. All other notices shall be sent to the postal address or facsimile number of the Party as provided via the Platform, as such address may be updated from time to time. Any such notice may be delivered personally or by first class prepaid letter (or by airmail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail 5 (five) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.
- 5.5 Governing Law and Venue: Unless the Parties mutually agree otherwise in writing, this Agreement, Schedule 1 and each EIO shall be governed by the laws of the state where an action is filed by either party to adjudicate or interpret this Agreement, on the condition that such an action is brought in an appropriate venue and forum. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs.
END OF SCHEDULE 1 TERMS & CONDITIONS