Terms and Conditions
Whereas, Lamphouse Media, LLC (“Company”) desires to contract with Publisher (also referred to as “Affiliate” for purposes of this agreement) for services as described in this Insertion Order.
NOW THEREFORE, in consideration of the mutual covenants, agreements, terms and conditions as set forth herein, Company and Affiliate hereto mutually agree as follows:
1. Insertion Order Term. The Term of this Insertion Order shall commence on the date of this Insertion Order and shall terminate after an initial period of one (1) calendar year. This Insertion Order shall automatically renew for additional successive terms of one (1) calendar year, each on the same terms and conditions, unless either party gives written notice of its intent not to renew this Insertion Order, at least thirty (30) days prior to the beginning of a new renewal period. “Term” shall mean the original one (1) year period as well as any renewal periods. Insertion Order may be cancelled by Company or Affiliate, with two (2) business days written notice to the other party.
2. Advertisements. As used herein, “Advertisements” and “Advertising” means, without limitation, the banners, buttons, clicks, co-registrations, e-mails, audio and video files, content, text, graphic files and similar media and/or data described in this Insertion Order. Affiliate shall not be liable for any advertisement errors and/or omissions, however, Affiliate will attempt to remedy such error or omission in a timely fashion.
3. Representations and Warranties of Affiliate. Affiliate warrants and represents to the best of its knowledge that (a) the person signing this Insertion Order on Affiliate’s behalf has the power and authority to enter into and perform the obligations under this Insertion Order and (b) the distribution or transmission of the Advertising will not, and their Advertising does not, violate any foreign or domestic, federal, state, or local law or regulation, or any rights of any third party, including but not limited to, the Can Spam Act of 2003, Michigan’s Children Protection Register or any similar Register in any state, any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, or constitute false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or any other right of any person or entity. For all advertising mediums other than email, Affiliate represents and warrants that it is fully compliant with all governing laws, rules, ordinances, and regulations regarding the creation and marketing of online materials including, without limitation, laws and/or regulations governing false and/or deceptive advertising, sweepstakes and/or gambling, adult content, comparative advertising, trade disparagement, libel, defamation and/or infringement of any kind. Affiliate understands and agrees that no Company Advertisements may be on any website containing adult material.
4. Representations and Warranties of Company. Company warrants and represents to the best of its knowledge that (a) the person signing this Insertion Order on Company’s behalf has the power and authority to enter into and perform the obligations under this Insertion Order and (b) the use and reproduction of the Advertising will not, and their Advertising does not, violate any foreign or domestic, federal, state, or local law or regulation, or any rights of any third party, including but not limited to, the Can Spam Act of 2003, Michigan’s Children Protection Register or any similar Register in any state, any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, or constitute false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or any other right of any person or entity.
5. Licenses. Company grants Affiliate the right to use, reproduce, publicly display and distribute to its Affiliates, Company’s or its client’s advertisements and collateral information and Company warrants that it has the right to grant such license. Company represents that Company is the owner or is licensed to use the entire contents and subject matter contained in its advertisements and collateral information, including, without limitation, (a) the names and/or pictures of persons; (b) any copyrighted material, trademarks, service marks, logos, and/or depictions of trademarked or service marked goods or services; and (c) any testimonials or endorsements contained in any advertisement submitted by Company.
6. Company Indemnity. Company agrees to defend and indemnify Affiliate, their officers, employees, successors and assigns, and to hold Affiliate, and their successors and assigns, harmless from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by Affiliate, and their officers, employees, successors and assigns arising out of or relating to any allegation, claim or cause of action, involving: a) Company breach of this Insertion Order, or any representation or warranty contained herein or b) the Advertisement, in any manner whatsoever. This shall survive the termination or expiration of this Insertion Order.
7. Affiliate Indemnity. Affiliate agrees to defend and indemnify Company, and its successors and assigns, and to hold Company, its successors and assigns, harmless from and against any all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by Company, and its successors and assigns arising out of or relating to any allegation, claim or cause of action, involving: a) Affiliate breach of this Insertion Order, or any representation or warranty contained herein; b) the delivery of the Advertisement, in any manner whatsoever; and/or c) Affiliate’s services. This shall survive the termination or expiration of this Insertion Order.
8. Terms of Payment. Affiliate will invoice Company at the end of each calendar month during the term of this Insertion Order. Unless otherwise set forth in the Insertion Order, payment will be due to Affiliate within thirty (30) days of the close of the month. All billable numbers shall be based on Company’s reporting system. Company will review leads on an ongoing basis and notify Affiliate of any quality issues. In addition, Company shall conduct a mid-month and month-end review and shall make available to Affiliate a detailed report within Company’s system. Company’s definitions for fraudulent leads are:
a. Fraudulent Full Record Information - The same user enters differing and falsified information across multiple properties.
b. Duplicate Device – The same unique device completes the same offer multiple times.
c. High Fraud Score – Third party fraud detection systems detect high fraud risk for the user in question. Company’s system blocks most leads with high fraud scores before the conversion takes place, however, some analysis is performed after the conversion is fired.
d. Invalid Information (including phone, address, etc.) – Lead information is falsified, either obviously or through detection using third party tools.
9. Governing Law and Venue. This Insertion Order shall be governed by, construed and interpreted according to the laws of the state of Texas. The parties agree that the appropriate, convenient and exclusive venue for any litigation arising out of this Insertion Order shall be the court of appropriate jurisdiction in Texas.
10. Waiver and Severability. Failure of either party to insist upon strict compliance with the terms and conditions of this Insertion Order shall not be considered a waiver of such terms and conditions, which either party may enforce at any later date. This Waiver shall not be waived, varied or modified in any way except by a writing signed by both parties to this Insertion Order. The invalidity or unenforceability of any provision of this Insertion Order shall not affect the validity or enforceability of any other provision hereunder.
11. Assignment. Affiliate may not assign, transfer or delegate any of its rights or obligations under this Insertion Order without written approval from Company and any attempt to do so shall be null and void.
12. Independent Contractors. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf; provided, however, that Affiliate acts as a limited agent of Company for the sole purpose of performing the advertising services set forth herein.
13. Total Liability. Affiliate agrees that Company’s liability hereunder for damages, regardless of the form of action, shall not exceed the total amount paid for services under the applicable Insertion Order.
14. Force Majeure. Neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, riots, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or nature or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carries or suppliers, or other causes beyond a party’s control whether or not similar to the foregoing. Each party shall promptly notify the other party of such an occurrence.
15. Entire Agreement. This Insertion Order constitutes the entire agreement between the parties with respect to the subject matter hereof. No oral promises or representations in connection herewith shall be binding upon either party, nor shall this Insertion Order be modified in any manner except by amendment in writing executed by the parties hereto. In the event of any proceeding or litigation arising out of or relating to this Insertion Order, the prevailing party shall be entitled to receive its reasonable attorneys’ fees, costs and expenses from the non-prevailing party, including at trial, on appeal and in bankruptcy.