ADV MARKET DIRECT LLC - COMPARE PAGE MARKETING PROGRAM TERMS AND CONDITIONS
These Compare Page Marketing Program Terms and Conditions (these “Terms”) govern the relationship between ADV Market Direct LLC (“Company”) and you, the party agreeing to these Terms (“Advertiser” or sometimes together with Company, “Party” or the “Parties”) as of the date you agree to these Terms (the “Effective Date”).
Company operates a services comparison page on one or more affiliated websites (“Compare Page”) where consumers are displayed advertisements for various companies offering services similar to the services offered by Advertiser (the “Advertiser’s Services”). Advertiser believes that consumers visiting a website operated by Company may benefit from Advertiser’s Services, and desires to engage with Company to assist in marketing the Advertiser’s Services by placing advertisements for the Advertiser’s Services (“Advertisement”) on the Compare Page.
1. Joint Marketing Relationship. Company will display Company’s Advertisements in accordance with the terms described herein and in an insertion order (“IO”) to be agreed to by the parties in writing, which is made a material part of these Terms.
2. Term. Unless the Agreement is terminated for default or convenience pursuant to the provisions of Section 3, or unless otherwise agreed to in the IO, these Terms shall be effective for twelve (12) months from the Effective Date (the “Term”). On or before the end of the Term, the Parties may mutually agree to an extension of the Term.
3. Termination. These Terms may be terminated by either Party as follows:
(a) Termination for Convenience. Either Party may terminate these Terms at any time for any reason, with or without cause, upon seven (7) business days’ written notice.
(b) Termination for Breach. Either Party may terminate these Terms for material breach by the other Party. If the breach is curable, then the terminating Party shall give the breaching Party a written notice specifying the breach and its intent to terminate unless the breach is cured within seven (7) days after such notice. If the breach is not cured within the cure period, the terminating Party may terminate the Agreement.
(c) Effect of Termination and Survival. Notwithstanding the termination or expiration of these Terms or any provision hereof to the contrary, Sections 7 and 15, Confidentiality and Indemnification, respectively, shall survive termination or expiration of these Terms, and Advertiser shall be paid for any portion of the Services performed prior to the termination.
4. Fees. In consideration for Company placing Advertisements on the Compare Page, Advertiser shall pay Company in accordance with the payment terms described in the IO.
5. Payment. Unless specified otherwise in the IO, Company will invoice the Advertiser on a monthly basis. Invoices will be paid within seven (7) days of receipt. If Company has not received payment in full within thirty days of the due date, Advertiser will pay Company an additional 1.5% of the outstanding balance per month, or the maximum amount allowable under Utah or any relevant law, whichever is less, until the outstanding balance is paid in full, unless otherwise specified in the IO. If Company must incur expenses related to collection of any outstanding balance and/or late fees, Advertiser will immediately pay Company’s reasonable expenses associated with the collection, including, without limitation, reasonable attorney’s and collection agency’s fees
6. Tracking; Auditing. Advertiser acknowledges that Company will have sole and absolute responsibility for calculations of fees owed under these Terms and the applicable IO(s). If Advertiser disagrees with any such determination, it must send Company a written request for review by Advertiser within forty-eight (48) hours of billing. Company will then provide Advertiser with a reviewed audit of the related data. If the Advertiser is still in disagreement with the Company’s reviewed audit of the related data, the Advertiser may request access to records underlying the invoiced on a minimum of seven (7) days’ notice, for the purposes of inspection by an independent accounting firm; provided, however, that inspections shall be made no more than one (1) time during the Term and can be no later than fourteen (14) days after billing. The cost of such inspection, if any, shall be borne by the Advertiser, unless such inspection reveals a discrepancy of ten percent (10%) or greater between the fee determined by Company and the fee determined by the independent auditor, in which case, it shall be borne by Company.
7. Confidentiality. Each Party agrees, during the Term and for a period of three (3) years thereafter, to hold in strictest confidence and not to use, except for the benefit of the Parties or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the other Party, any Confidential Information. “Confidential Information” means any of the Parties’ proprietary information, technical data, trade secrets, or know-how, including, but not limited to, reports, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to one Party by the other Party, either directly or indirectly. Each Party may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the other Party’s personnel or authorized representatives or for any other purpose each Party may hereafter authorize in writing. At the request of either Party, the other Party must promptly return all copies of Confidential Information received from such Party, and must promptly destroy all other Confidential Information prepared by it in connection with these Terms, including, without limitation, any notes, reports, or other documents.
8. Submission and Review of Advertisements. The materials comprising the Advertisements must be delivered to Company to the email address or by any other means as specified by Company and in the format(s) specified by Company. Company may, in its sole discretion, make changes to, update, or replace the Advertisements. Company may review Advertisements but does not accept responsibility or liability for any errors, inaccuracies, or inappropriate content in any Advertisement. Unless otherwise specified in the IO, Company has the right, but not the duty, to reasonably reject or remove from any Advertisement for any reason at its sole discretion.
9. Representations and Warranties of Both Parties. Each Party hereby represents and warrants to the other Party as follows:
(a) It (i) is duly formed, validly existing, and in good standing under the laws of the jurisdiction of its formation; (ii) is duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where the nature and extent of its business and properties require due qualification and good standing; and (iii) possesses all requisite authority, permits and power to conduct its business as is now being or is contemplated by these Terms to be conducted.
(b) The agreement to these Terms and the performance by it of its obligations hereunder (i) are within its corporate power; (ii) have been duly authorized by all necessary corporate action; (iii) except for any action or filing that has been taken or made on or before the Effective Date, require no action by or filing with any government agency; (iv) does not violate any provision of its articles of incorporation or bylaws; and (v) does not violate or is a material breach of any agreement between it and any other third party.
(c) This Agreement will, upon execution and delivery by all parties thereto, constitute a legal and binding obligation of Counterparty, enforceable against Counterparty according to its terms.
(d) In performing under this Agreement, it will comply with all applicable federal and state laws including.
10. Representations and Warranties of Advertiser. Advertiser hereby represents and warrants to Company as follows:
(a) If provided by Advertiser, the content comprising each Advertisement and any website advertised by such Advertisement is not defamatory, discriminatory, violent, or obscene, does not constitute false advertising, solicit unlawful behavior, or violate any applicable laws, rules, or regulations.
(b) The Advertised Services shall not violate any applicable laws, rules, or regulations, and the Advertiser shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
(c) It shall notify the Company of any changes to its Advertised Services in a manner such that it’s Advertisements displayed on the Compare Page are rendered inaccurate or misleading.
11. Intellectual Property. The Advertiser represents and unconditionally guarantees that, To the extent provided to Company by Advertiser, all text, graphics, photos, designs, trademarks, hyperlinks, or other content comprising any Advertisement are owned by the Advertiser, or that the Advertiser has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend Company and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Advertiser.
12. License. The Advertiser grants Company a non-exclusive limited license to use its trademarks, service marks, and trade names in connection with publishing the Advertisement during the Term.
13. No Solicitation of Loan Applications. Each Party agrees that in performing under this agreement Company is merely displaying Advertiser’s advertisements and is not assisting any consumer with any loan transaction or in filling out any loan application.
14. Covenants and Conditions. During the term of this Agreement, Advertiser agrees that it shall not engage in any activity that:
(a) violates any state or federal law, rule or regulation.
(b) violates any terms and conditions or agreements with third parties to which it is subject or bound;
(c) uses words and descriptions in regard to any advertisement or communication with consumers in a deceptive, misleading or unfair manner;
(d) uses unfair, fraudulent, misleading or deceptive methods; or
(e) promotes or conducts any illegal or fraudulent activity.
15. Indemnification. Advertiser agrees to indemnify and hold the Company harmless of, from and against any and all loss, liability, cost, damage or expense, including reasonable attorneys’ fees and disbursements in any third party claims resulting from any misrepresentation, any breach of warranty, or non-fulfillment of any agreement or covenant of Advertiser under these Terms. Advertiser shall not settle or compromise any claim with a third party without the consent of Company, which consent shall not be unreasonably withheld.
16. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Utah, without respect to its conflict of laws principles. Each party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Duchesne County, Utah.
17. LIMITATION OF LIABILITY. COMPANY’S AGGREGATE LIABILITY UNDER THESE T ERMS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY ADVERTISER TO COMPANY PURSUANT TO THIS AGREEMENT FOR THE THEN CURRENT TERM. COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES.
18. NO WARRANTIES. ALL SERVICES PROVIDERE HEREIN BY COMPANY ARE ALL PROVIDED "AS IS." COMPANY MAKES AND HAS MADE NO WARRANTIES, EXPRESS OR IMPLIED, AND PROVIDES AND HAS PROVIDED NO GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, TO CUSTOMER, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
19. General. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. Nothing in this Agreement shall create any obligation between either Party and a third party. No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties. Advertiser may not, without the prior written consent of Company, which shall not be unreasonably withheld, assign, subcontract, or delegate its obligations under this Agreement. All references in this these Terms to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this these Terms shall be binding on and shall inure to the benefit of the successors and assigns of the Parties. A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable: (a) notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and (b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein. This Agreement, together with all IOs, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.