IOaddendum
In addition to any other terms between Research Now Ltd. (“Research Now”) and you and/or your company as affiliate network, co-registration partner, display advertising or email marketing partner or other party supporting Research Now in the execution of online advertising campaigns to promote the brand known as “Valued Opinons”, (the “Publisher”), the following standard terms conditions shall apply
1. ADVERTISING INSERTION ORDERS. All orders or other requests from Research Now for the display of graphic or text files (“Advertisement(s)”) on or through Publisher’s site (“Publisher Site”) are governed by this Addendum to the terms and conditions of the advertising insertion order (“AIO”). Research Now is not obligated to provide any advertising hereunder and Publisher has not offered to publish any Advertisements unless and until an AIO is executed by both parties and attached hereto. In the event of a conflict between the terms of this Addendum and the AIO, the terms of this Addendum shall prevail.
2. ACCEPTANCE. Research Now’s offer to engage Publisher to publish Advertisements for Research Now is made on these standard terms and conditions only, and the placement or other communication of an order for services shall constitute Research Now’s unconditional acceptance of these terms and conditions; no acceptance shall be effective until an AIO signed by Publisher is received by Research Now.
3. REPRESENTATIONS AND WARRNATIES; INDEMNIFICATION.
a. Authority. Publisher represents and warrants that it has full power and authority to enter into this Addendum and the AIO.
b. Licenses. Both Parties represent and warranty that they have full power and authority to grant any licenses granted herein.
c. No Guarantees. Neither Party represents, warrants or makes any specific or implied promises as to the outcome of or income generated by any Advertisement.
d. Legal Compliance. Publisher represents and warrants that it will comply with all applicable laws, rules and regulations, and acts amendatory thereto or rules promulgated thereunder and that the Publisher site(s) and the method of delivering advertising hereunder do not violate any governmental law, rule or regulation or any judicial decree or any intellectual property or other proprietary right of any third party.
e. Consumer Consent. Publisher represents and warrants that it will only distribute Advertisements by email to consumers who have provided “opt-in” or other documented affirmative consent to receive email advertisements from Publisher or third parties such as Publisher.
g. Suppression. Publisher represents and warrants that it will timely obtain and use all Advertisement suppression lists, and that it shall not use any suppression for any purpose other than the removal of email addresses of consumers who have opted-out of receiving future advertisements from a sender.
h. Use of Approved Content Only. Publisher represents and warrants and covenants that it will only use approved Advertisement content, creatives, offers or rewards (“Ad Materials”), including approved from and subject lines and banners, and shall not alter or modify any Advertisement content (including any tracking link) without the express written consent of Research Now. Publisher further represents and warrants to and agrees with Research Now that (i) Publisher will not, and will not allow any permitted third-party distributers, packagers, sub-publishers, affiliates or advertising syndication partners (“Downstream Affiliates”) to, alter, modify or otherwise Ad Materials in any way without the express prior written consent of Research Now; (ii) Publisher will not use, authorize or permit any Downstream Affiliates to publish, distribute or disseminate advertisements or Ad Materials without the express written prior consent of Research Now
i. No Controversial or Inappropriate Content or Links. Publisher represents and warrants that it will not promote any Advertisement in an email or on a Website, or linked to or from an email or Website, that contains any pornographic, obscene, discriminatory or political content, or that includes content relating to software pirating, hacking or other forms of on-line fraud and that the Publisher Site does not contain any content which may reasonably be considered unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, indecent or tortious.
j. No Illegal Content or Links. Publisher represents and warrants that it will not promote any Advertisement in an email or on a Website, or linked to or from an email or Website, that contains or promotes illegal activities, including, but not limited to, gambling, illegal narcotics, prostitution, bomb building or counterfeiting.
k. Indemnification. Publisher shall defend, indemnify and hold Research Now and its affiliates, employees, officers, directors, shareholders, contractors and agents harmless from and against any and all liability, loss, damage, expense, claim, or cause of action, including without limitation attorneys’ fees and expenses, arising out of or related to (i) the breach or alleged breach of Publisher’s representations and warranties contained herein; (ii) Publisher’s products or services; (iii) any alteration of any Ad Materials by Publisher or its agents or representatives or third parties acting on its behalf or under its authority or control; (iv) any material breach by Publisher of any of Publisher’s e-mail compliance obligations; or (v) any material breach by any e-mail list provider, broker or other third party selected by Publisher of any obligation imposed on Publisher or any such third party, regardless of whether Research Now shall have consented to any such relationship.
4. PAYMENT TERMS. Research Now agrees to pay for all Impressions, Clicks, Leads, acquisitions, sales, and/or Engagements as part of Advertisements that Publisher delivers. The term, “Impression(s),” means the number of times an Advertisement is served to a Member and shall be measured by Publisher in accordance with its standard methodologies and protocols. The term, “Click(s),” shall mean the number of times, as recorded by Publisher’ server, a Member directly interacts with (i.e., clicks on) an Advertisement linked for transfer to the Research Now’s site or suggested destination. The term, “Lead(s)”, shall mean any piece of information that a Member provides that may include, without limitation, the first name, last name, e-mail address, or telephone number of the Member. The term, “Engagement(s),” shall mean an Impression plus completed responses to questions following the viewing of the Impression. Research Now will pay Publisher the total fee due specified on the AIO for the applicable Advertisement as invoiced over the number of months the Advertisement is to run. Research Now agrees to pay Publisher for any Leads delivered to Research Now during each month of the Term.
Unless the Research Now specifies otherwise, payments shall be made to Publisher within forty-five (45) days of the end of the campaign in which Publisher generated such Impressions, Clicks, Leads, acquisitions, sales, and/or Engagements; provided, the terms in this paragraph shall not apply following termination of this Agreement, where the amounts due to Publisher represent a final payment. Publisher shall issue one (1) invoice for all campaigns targeted at a country per month, unless Research Now specifies otherwise in writing. Additionally, Research Now shall responsible for payment for the amount of Impressions, Clicks, Leads, acquisitions, sales, and/or Engagements as part of Advertisements that Publisher actually delivers so long as such Impressions, Clicks, Leads, acquisitions, sales, and/or Engagements do not exceed the amount set forth in the applicable AIO by more than ten percent (10%); Research Now shall not be responsible for payment of any amounts exceeding this ten percent (10%) threshold, nor shall Publisher be entitled to receive payment for any such Impressions, Clicks, Leads, acquisitions, sales, and/or Engagements.
5. MAKE GOODS. If Publisher fails to deliver, by the end of the Term the aggregate number of Advertisements, Clicks, or Engagements as agreed in the AIO, Research Now may, in addition to any other remedy available to it, require at its sole option to the following, as determined in the sole discretion of Publisher: (i) a refund of the charges representing the Advertisements, Clicks, or Engagements that were underdelivered; (ii) placement of the Advertisement and subsequent delivery of the Clicks or Engagements at a later time in a comparable position; or, (iii) an extension of the AIO.
6. REPORTING. Publisher tracks and invoices Advertisements delivered based on ad requests by utilizing Extranet reporting, and Publisher will issue a weekly tracking reports on that basis. Research Now may also track delivery through its proprietary or subcontracted third party ad server (“Third Party Ad Server”) whose identity is set forth in the AIO. Research Now may substitute the Third Party Ad Server specified for Extranet reporting in the AIO upon notice to the Publisher. In the event that the difference between the statistics tracked through the Extranet reporting and the Third Party Ad Server vary by more than five percent (5%), or if Research Now believes that the statistics contain more than two percent (2%) Bad Leads (as hereinafter defined), the parties shall negotiate, in good faith, to reconcile the difference or to determine the number of Bad Leads, if any. In the event that Research Now makes a claim with respect to Bad Leads, Research Now shall state to Publisher, in writing, Research Now’s reasons for believing the Leads are Bad Leads, and shall supply Publisher with evidence justifying Research Now’s belief; Research Now may identify Bad Leads by either (i) the specific Bad Lead(s) or (ii) the source of the Bad Lead or the publisher id. For purposes of this AIO, “Bad Leads” shall mean fraudulent, incomplete or duplicate Leads. Fraudulent Leads shall include Leads that result from Publisher or its agents engaging in the entry of consumer information without the consent of the actual consumer, such as by adding Leads or Clicks or inflating Leads or Clicks by fraudulent traffic generation such as pre-population of forms without the advance written consent of Research Now or other mechanisms not approved by Research Now. Incomplete Leads include Leads in which the information sent to Research Now does not contain the data or information required by Research Now. Duplicate Leads includes Leads that Publisher sends to Research Now that contains identical information Publisher has previously sent to Research Now.
7. PUBLICITY. Neither party will issue any press release or make any public announcement(s) relating in any way whatsoever to this Agreement or the relationship established by this Agreement without the express prior written consent of the other party, which consent shall not be unreasonably withheld, provided that Publisher may not make informational references to advertising on the Publisher Site and Research Now's participation therein in publicity and press releases without obtaining Research Now's consent; and provided further, that Publisher may not refer to Research Now as a client of Publisher in collateral marketing materials without the express written consent of Research Now.
8. PROHIBITED CONDUCT
a. Fraud. Publisher shall not distribute or promote any Advertisement using Fraudulent means. “Fraudulent” means shall include, but not be limited to, the following: (i) Creating additional Actions through fraudulent traffic generation techniques such as pre-populated forms, bots, scripts or other, similar techniques. (ii) “Impression spam,” which is the frequent or automated searching of a search term, in connection with paid search campaigns, in order to reduce a competitor’s click-through rates on their advertisements. (iii) Any other form, method, program, script or technique that artificially inflates the number of Actions generated for an Advertisement, including the use of gift cards.
b. Incentivized Actions. Unless otherwise approved in writing by Research Now, Publisher shall not distribute any Advertisement on or through an Incentivized website, or using Incentivized means, unless explicitly allowed by the Advertisement’s terms and conditions. “Incentivized” means that a host website or media offers incentives to users, including, but not limited to, cash, points, prizes, gift cards or other thing of value, if the user engages in conduct that would generate an Action for an Advertisement.
c. Unapproved or Unlawful Websites. Publisher shall not distribute any on or through a Website that fails to comply with the criteria set forth in Section 2(h), or include any unlawful content on its Website, including, but not limited to, false, misleading or deceptive representations.
d. Unapproved Alterations to Advertisements. Publisher shall not alter any Advertisement, including the text, pictures, from or subject lines, graphics, sound, video, programming code and other data used to comprise an Advertisement unless approved in writing by Research Now. In the absence of written approval by Research Now, any alteration by Publisher shall invalidate any Action generated from the use of the altered Advertisement, thereby forfeiting Publisher’s right to payment that might otherwise exist.
e. Opt-Out Links and Physical Address. Publisher shall only use opt-out links and physical addresses in an email advertisement that are provided by Research Now and/or set forth in an Advertisement’s terms, conditions, policies or procedures. Publisher shall not include any alternative or additional opt-out links or physical addresses in an email, including, but not limited to, an opt-out link or physical address of Publisher, unless authorized in writing by Research Now.
f. Unlawful Conduct. Publisher’s performance of this Agreement shall comply with all applicable laws, rules and regulations, whether federal or state; any and all United States treaties; and the laws of any nation that has reciprocal treaty rights with the United States. Without limiting the foregoing, Publisher shall not use, in connection with its performance of this Agreement, any third party’s trademark, publicity rights, or other intellectual property in any From/Subject line, domain name, website content, email creative, or as a keyword.
g. Unlawful Use of Suppression Lists. Publisher shall not use any suppression list for any purpose other than the removal of consumer email addresses from its distribution lists. Publisher shall never use any suppression list, or the information contained therein, for the purpose of distributing a commercial email advertisement, solicitation or promotion.
h. Use of Name or Intellectual Property of Research Now or Its clients.
i. Publisher shall not register or use any internet domain or sending domain using the name (in whole or in part, including any derivations) of any of Research Now’s clients or third party advertisers, unless such use is required or permitted in the Advertisement’s terms and conditions, as reflected in the applicable IO. i. Miscellaneous Prohibitions. Publisher shall not promote any Advertisement using any of the following explicitly prohibited techniques or methods: i. A website that solely contains a list of links or advertisements; ii. A website that only contains an Advertisement; iii. A website that is not fully functional (i.e. no “under construction” sites or sections); iv. A website that includes spawning process pop-ups or that generates or creates multiple pop-up windows; v. The use of third party websites’ internal communications systems, including, but not limited to, internal email (e.g. myspace.com or facebook.com email), bulletin boards, chat rooms, Craig’s List (or similar websites), or comments; vi. Associating or linking an Advertisement to a website or content that includes any of the following: (i) racial, ethnic, gender, age, religious, political, or sexual orientation discrimination; (ii) investment or business opportunities or advice prohibited by law; (iii) obscenity, profanity, pornography, violence or adult content; (iv) defamatory, abusive or threatening language, images or content; (v) promotion of illegal substances or narcotics, gambling, or other criminal conduct such as bomb building or counterfeiting; (vi) pirating software or media; (vii) hacking, spoofing, phishing or phreaking; or (viii) any person or entity associated with fraud, felonious crime, or unethical business practices. (ix)vii. Spoofing, redirecting or trafficking from or to websites containing adult content. (xviii). Use of spyware, adware or any other form of malware that generates new web browser windows.
9. PROPRIETARY INFORMATION, TRADE SECRETS AND NON-SOLICITATION
a. Confidentiality. Publisher recognizes and acknowledges that it has acquired and will acquire Proprietary Information and Trade Secrets (as defined above) from and/or concerning Research Now, and its parent, subsidiaries, Publishers, and acquired businesses. Publisher shall not, during or after the Term, use or disclose any Proprietary Information to any person, firm, corporation, association, or any other person or entity for any reason or purpose whatsoever, directly or indirectly, except as required to perform Publisher’s job duties hereunder or as required by law. In the event of termination of this Agreement, whether voluntary or involuntary, and whether initiated by Research Now or Publisher, or upon request of Research Now at any time, Publisher shall deliver to Research Now all documents and data pertaining to the Proprietary Information and shall not take or remove from Research Now (or its website) any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to any Proprietary Information. Publisher will not, at any time during or after the term of this Agreement, use, copy, publish, summarize, or remove from Research Now’s premises any Proprietary Information, except, during the term of this Agreement, to the extent necessary to carry out Publisher’s duties and responsibilities under this Agreement.
b. Protection of Trade Secrets/Nonsolicitation. Publisher acknowledges that Research Now has spent significant time, effort and resources protecting its Trade Secrets (defined above). Any Trade Secret shall cease being a protectable trade secret if the information becomes part of the public domain or is rightfully disclosed to Publisher outside of the scope of his performance of his duties under this Agreement, by a third party not under a duty of confidentiality to Research Now. In order to protect the Trade Secrets, and in consideration for the benefits provided to Publisher, Publisher hereby agrees that during the term of this Agreement and until the Trade Secrets cease being protectable trade secrets as set forth herein, or pursuant to applicable law, Publisher will not, using or relying on any Trade Secret, directly or indirectly, call on, induce or solicit, on behalf of Publisher or any third party, any current or prospective customer, merchant, vendor or supplier of Research Now for the purpose of diverting, taking away or reducing the amount of current or prospective business of Research Now, or otherwise interfere with the relationship between Research Now, on the one hand, and its clients, customers, merchants, vendors or suppliers, on the other hand. In addition, Publisher will not, for a period of two (2) years following the termination of this Agreement, whether initiated by Publisher or Research Now, directly or indirectly, as an agent, executive, consultant, representative, stockholder, manager, partner, or in any other capacity, recruit or solicit any person who is at that time employed or engaged by Research Now, to terminate his or her relationship with Research Now, or otherwise interfere with the relationship between Research Now and its employees.
c. Reasonableness of Covenants. If, at any time, the provisions of this Addendum shall be finally adjudicated to be invalid or unenforceable by a court of competent jurisdiction, the Parties hereby agree that the court making this determination will have the power to reduce the scope, duration, or area of the term or provision to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and that this Agreement will be enforceable as so modified.
d. Third-Party Proprietary Information. Publisher acknowledges that Research Now has received, and in the future will receive, from third parties, confidential information, subject to a duty to maintain the confidentiality of such information and to use it only for certain limited purposes. Publisher will treat such information in a manner consistent with Research Now’s agreement with such third parties, which, at a minimum, shall require Publisher to take any and all such actions as required in Section 10(a)-(b). Without limiting the foregoing, Publisher will not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party any such confidential information, other than as necessary to perform Publisher’s duties under this Agreement.
10. GENERAL.
a. This Addendum is governed by and shall be construed in accordance with English Law. Any disputes or claim arising under or in connection with this Undertaking shall be subject to the exclusive jurisdictions of the courts of England and Wales.
b. Research Now shall not be deemed to have waived or modified any of these terms and conditions except by a writing signed by its duly authorized representative.
c. This Addendum, the AIO, together with any Exhibits attached hereto and each of which is hereby made an integral part hereof, constitutes the entire agreement and understanding between the parties, and supersedes and cancels all previous negotiations, representations, undertakings, understandings and agreements heretofore made between the parties with respect to the subject matter hereof.
d. This Addendum may be executed in counterparts, each of which shall be deemed to be an original, and executed counterparts may be exchanged between the parties via facsimile.