Publisher Terms
Ringlab Media Publisher Master Service Agreement
This Publisher Agreement, along with all attached Exhibits and any executed Insertion Orders (collectively referred to as the (“Agreement”), represents the entire understanding between Ringlab Media, LLC (“Ringlab”) and you or your company, including any sub-publishers (collectively referred to as the “Publisher”). Ringlab and the Publisher are individually referred to as a “Party” and collectively as the (“Parties.”)
1. Select Definitions
1.1. An “Action” means a specified action identified in an Insertion Order or Campaign-Specific Terms, initiated through Publisher’s advertising efforts and completed by a consumer, whereby a Fee is generated—such as calls, clicks, click-throughs, sales, registrations, installs, downloads, impressions, and leads.
1.2. An “Advertiser” means a third-party client of Ringlab, whose products and services are promoted through the Publisher Program.
1.3. A “Publisher ID” means the unique identification number, tracking link, and/or phone number assigned to Publisher for use in redirecting consumers to the Advertiser’s website, app, products, or services to ensure Publisher is credited with any Action completed by the consumer.
1.4. The “Publisher Program” means, collectively, the combined paid advertising opportunities, the web-based application, reporting, access to data, and content provided by Company to Publisher and others.
1.5. A “Campaign” means an advertising opportunity made available to Publisher by Ringlab for a specific Advertiser or offer, which is limited in time and/or scope.
1.6. “Campaign-Specific Terms” means rules and requirements that govern a particular Campaign in addition to those set forth in this Agreement. Campaign-Specific Terms may be communicated to Publisher by Ringlab or an Insertion Order.
1.7. A “Fee” means the Publisher commission generated upon the occurrence of a qualified Action.
1.8. An “Insertion Order” means a separate writing executed by the Parties setting forth Campaign-Specific Terms and the associated Fee.
1. 9. A “Call” means the action or actions performed by a consumer pursuant to an Offer which are derived from Inbound Calls and/ or Call Transfers provided by Publisher as set forth in the applicable Offer.
2. Participation in the Publisher Program
2.1 Approval. Publisher’s participation in the Publisher Program is subject to the terms and conditions of this Agreement and Ringlab’s express approval. Upon Publisher’s receipt of an acceptance email from Ringlab, Publisher is entitled to participate in the Publisher Program. Ringlab’s approval of Publisher’s participation may be withheld or terminated at any point, at Ringlab’s sole discretion, regardless of initial acceptance.
2.2. License. During the term of this Agreement, Ringlab grants to Publisher a revocable, non-transferable, non-exclusive limited license to use the Publisher Program and any data, reports, content, information, or analyses arising out of such use (the “Program Data”) solely for the purposes set forth in this Agreement.
2.3. Third-Party Publishers. Publisher hereby acknowledges and agrees that to the extent it represents or acts on the behalf of third-party affiliates/publishers or websites (“Third-Party Publishers”), Publisher assumes all liability for such Third-Party Publishers and will ensure that such Third-Party Publishers comply with the terms of this Agreement, any Campaign-Specific Terms, and all applicable laws and regulations. Without limiting any other provision of this Agreement, Publisher shall fully and completely indemnify, defend, and hold harmless Ringlab for all damages arising from a Third-Party Publisher’s breach of any obligations or warranties set forth in Section 10 herein. Without limiting any other provision of this Agreement, Publisher represents and warrants that it has the ability to terminate any Third-Party Publisher’s rights to the Publisher Program or Program Data immediately. For the purposes of this Agreement, unless expressly stated otherwise, the term “Publisher” means the Publisher and any Third-Party Publishers.
3. Marketing Methods
3.1. Authorized Marketing Methods. In connection with generating Actions hereunder, depending on the marketing methods authorized under the specific Insertion Order, Publisher may be authorized to: (i) email individuals in Publisher’s proprietary database(s) (collectively, “Publisher Databases”); and (ii) feature certain Advertisements (as defined below) on websites and/or landing pages owned and/or operated by Publisher (collectively, “Publisher Website(s)”). Publishers must submit the URL of every Publisher Website utilized hereunder at least five (5) days prior to use of the same. Ringlab reserves the right to reject and/or prohibit, at any time, the use by Publisher of any Publisher Website hereunder, even where Ringlab previously approved of the same. Publisher must provide at least ten (10) business days’ written notice prior to effectuating any changes to any Publisher Website previously approved by Ringlab and utilized hereunder, which changes must be approved anew by Ringlab prior to publication of same.
3.2. Outbound Call / Text Marketing. Any and all outbound call or text-related Actions obtained from Advertisements by Publisher and provided to Ringlab shall consist of individuals that have provided prior express written consent to receive text messages, callbacks, follow-up text messages, commercial telephone calls, including pre-recorded messages, robocalls and/or autodialed via automated technology, to the telephone number(s) (including wireless number(s)) provided to Publisher. For purposes hereof, the term “prior express written consent” shall have the same meaning set forth under the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (“TCPA”). Publisher shall retain the records of each individual’s prior express written consent (“Consent Records”) for a minimum of six (6) years following creation of same, and shall provide such Consent Records to Ringlab within five (5) business days of receipt of Ringlab’s request at any time during that six (6) year period. Additionally, Publisher warrants to Ringlab that Publisher will take all required actions necessary to comply with applicable state and federal Do Not Call (“DNC”) and telemarketing registration statutes and regulations. Publisher agrees to fully indemnify and hold Ringlab harmless from and against any and all liability, claims, judgments, settlement amounts or other costs (including reasonable attorneys’ fees) incurred by Ringlab in connection with Publisher’s failure or suspected failure to comply with the provisions set forth in this paragraph and/or the TCPA.
3.3. Email Marketing. Where permitted under the applicable Insertion Order, Publisher may send commercial email to the Publisher Databases in connection with generating Actions hereunder. Publisher shall be responsible for ensuring that the Publisher Databases are collected, compiled and maintained, and that each email sent is sent, in accordance with all privacy, data protection and any other laws, statutes and governmental regulations applicable to same including, without limitation, the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”), state email, deceptive marketing and privacy laws including, but not limited to, the Michigan Children’s Protection Registry (https://www.protectmichild.com/senders/) and the Utah Child Protection Registry (https://www.registrycompliance.com/apply.html) and the Children’s Online Privacy Protection Act. Any costs and/or fees charged to Publisher by its Internet Service Provider related to responding to and/or managing allegations of “spam” or any other unauthorized usage complaints received from prospective email recipients, regulatory agencies or otherwise shall be borne exclusively by Publisher. Publisher is solely responsible for all consumer complaints in connection with email campaigns it conducts. Publisher shall: (a) make adequate disclosures as required by law to those in the Publisher Databases regarding its email and privacy and security policies; and (b) respond to all complaints within three (3) business days after Publisher becomes aware of the subject complaint. Publisher further represents and warrants that the email addresses in the Publisher Databases are originally compiled with the consumer’s “Affirmative Consent,” as defined in CAN- SPAM, and that all recipients have in fact opted-in to the applicable Publisher Databases. Publisher must, upon the request of Ringlab, supply the Publisher Website (along with a then-current screen shot of the registration path and disclosures), and the name, date, time and IP address where the consumer signed-up and/or gave Affirmative Consent to Publisher to be contacted with such email messages. Publisher represents and warrants that it shall: (i) not falsify email header or transmission information (including, without limitation, source, destination and routing information); (ii) not use brand names and/or trademarks of another party in the subject or from lines or body of any commercial email transmission; (iii) not seek or obtain unauthorized access to computers for the purpose of sending any commercial email; (iv) include within all commercial email sent, Publisher’s correct point-of-origin email address, transmission information and routing information; (v) include within all commercial email sent, clear, prominent opt-out instructions in the email and in the first line of the text, if required by applicable law; (vi) include within all commercial email sent, a toll-free telephone number or valid email address at which recipient may contact Publisher to file complaints and/or opt-out; (vii) include within all commercial email sent, a functioning unsubscribe link which, when activated by user, actually and permanently removes the user’s email address from the applicable Publisher Databases; and (viii) include within all commercial email sent, the identifier and any disclaimers that Ringlab assigned to the email.
3.4. Incorporation of Campaign-Specific Terms. All Insertion Orders between the Parties and any other document or media containing Campaign-Specific Terms are incorporated into this Agreement by reference. Publisher agrees to comply with all Campaign-Specific Terms. In the event of a conflict between the terms of this Agreement and any Insertion Order or other Campaign-Specific Terms, the Insertion order or Campaign-Specific Terms shall govern as to the underlying Campaign and this Agreement shall govern as to all other matters. Ringlab reserves the right to, in its sole discretion, approve or deny Publisher to work on a specific Campaign without affecting any other aspect of this Agreement.
3.5. Creative. Publisher will provide Ringlab with graphic, textual, audio, artwork, or other material for display and use in connection with a specific Campaign (collectively, ‘Creative’). Publisher may only use Creative that has been approved in advance by Ringlab. Any unapproved alterations to Creative could result in false advertising, which Ringlab cannot endorse for payment. If Ringlab determines that Creative has been altered without its approval, Ringlab may suspend payments owed to Publisher while investigating the matter
4. Marketing Restrictions
4.1. No Incentivized Marketing. Other than where permitted by Ringlab in writing or in an Insertion Order, in advance, Publisher shall not use ANY “incentivized marketing” or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Actions, nor create the appearance of incentivized marketing or otherwise attempt to induce consumers to provide Action-related information through use of any other incentives.
4.2. Fraudulent Reporting. Publisher may not, nor knowingly permit any person to, inflate the number of Actions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing an Action registration form. Publisher may not: (i) place any statement in close proximity to the Advertisements requesting that end-users “click” on or fill-out the applicable Action registration form (e.g., “Please click here”); (ii) place misleading statements in close proximity to the Advertisements; (iii) take control of an end-user’s computer by delivering Advertisements that the end-user cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (iv) install or execute on another’s computer one or more additional software program(s) without consent of the end-user (in addition, Publisher must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the end-user); and/or (v) distribute spyware or other similar harmful software.
4.3. No Social Media Promotion. Without Ringlab’s prior written approval in each instance, Publisher may not: (i) include or promote any Advertisements in, by and/or through any blogs, news articles or other social media outlets; or (ii) use any endorsements or testimonials in connection with marketing the Advertisements.
4.4. No Third-Party Trademarks. Unless authorized in writing in advance by Ringlab, Publisher may not use third-party trademarks or any other term excluded in any applicable Insertion Order, in any manner to direct traffic to any Publisher Websites. This prohibition includes, but is not limited to, purchasing keywords from search engine service providers (“Paid Search Networks”), or purchasing inclusion in search engine networks (“Paid Inclusion Networks”), where the associated keywords include the trademark, service mark and/or brand name of any third party, or any derivative or misspelling of any such trademark, service mark or brand name. Publisher must provide all text and proposed keywords/phrases that it would like to bid on (“Keyword Text”) to Ringlab for approval or editing, prior to submitting same to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, Publisher must not violate the rules, requirements or regulations of any Paid Search Network or Paid Inclusion Network, and Publisher shall fully indemnify and hold harmless Ringlab from and against any and all liability, claims, judgments, settlement amounts or other costs (including reasonable attorneys’ fees) incurred by Publisher arising out of or in connection with such a violation.
4.5. No Inappropriate Content. Publisher will not use inappropriate content on, or in connection with, the Advertisements, Publisher Websites and/or email messages sent to the Publisher Databases including, without limitation, content that promotes or contains language referring to: (i) the use of alcohol, tobacco or illegal substances, nudity, sexually explicit material, pornography, profanity, adult-oriented content, expletives or inappropriate language; (ii) illegal or unethical activity, deceptive acts, racism, hate, material that promotes violence, “spam,” mail fraud, gambling, pyramid schemes, investment opportunities or illegal advice; (iii) libelous, defamatory, infringing, false or misleading content, or other content that is contrary to public policy; (iv) content that may expose Ringlab to negative publicity; (v) piracy (of software, videos, audio/music, books, video games, etc.) hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; (vi) content that violates the rights of others, such as intellectual property or privacy rights; (vii) activities generally understood as Internet abuse including, but not limited to, the sending of unsolicited bulk electronic mail; or (viii) content that is otherwise offensive or inappropriate in Ringlab’s sole discretion.
4.6. No Brokering. Publisher shall not, under any circumstances, broker the Agreement and/or the associated Campaigns other than where Ringlab provides its prior express written approval.
4.7. Auditing Rights. Ringlab shall have the right to audit, at its own expense, Publisher’s documents, books, and records relating to its performance of this Agreement. Ringlab audit rights under this Section shall continue for so long as Publisher is required to maintain consent records under the terms of this Agreement.
5. Suppression Lists
With respect to any email suppression list generated by Publisher hereunder, or provided to Publisher by Ringlab (collectively, the “Suppression List”), Publisher shall: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of the Agreement; (b) regularly use such Suppression List to remove any and all email addresses contained therein from the receipt of future commercial email messages; (c) not retain a copy of any Suppression List following termination of the Agreement; (d) not use any Suppression List for purposes of email appending in any manner whatsoever; (e) hold any Suppression List made available by Ringlab in trust and confidence; and (f) not disclose any Suppression List made available by Ringlab to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party’s written agreement to be bound by the terms of the Agreement. Publisher further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commission’s (“FCC’s”) wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC’s wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder. Publisher shall provide Ringlab with a copy of the Publisher-generated Suppression List at least once per week. If no such email addresses are supplied by Publisher, Ringlab may conclude that no such addresses exist.
6. Term and Termination
6.1 Term. This Agreement shall begin on the date first agreed to by the Publisher (the “Effective Date”) and remain in effect for an initial term of one (1) year. Unless terminated by either Party upon thirty (30) days’ notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one (1) year terms.
6. 2. Termination. Either Party may terminate this Agreement, or any Insertion Order or Campaign, at any time, with or without cause, upon two (2) business days’ prior written notice to the other Party. In the event that either Party (i) files a voluntary petition in bankruptcy or (ii) makes an assignment for the benefit of its creditors, this Agreement shall automatically terminate. Ringlab may terminate this Agreement immediately upon written notice if Publisher breaches any of the material terms of this Agreement.
6.3. Effect of Termination. Upon termination of this Agreement, any and all licenses and rights granted to Publisher in connection with this Agreement shall immediately cease and terminate. Further, upon termination of this Agreement, Publisher will: (i) immediately discontinue the use of the Publisher Program and any Program Data; (ii) immediately cease to use, and remove from the Publisher’s Websites, any and all Creative, Advertisements and/or related materials made available to Publisher in connection with Publisher’s participation in the Publisher Program; and (iii) immediately cease transmitting any and all emails, text messages, phone calls, or other communications in connection with any Campaign. In the event of termination of this Agreement, Sections 1 and 10–17, and all other indemnification obligations shall survive.
7. Advertisements
Publisher will provide Ringlab with all Creative and marketing materials, including, but not limited to, banners, buttons, links, co-registration forms, emails, audio and video files, content, text, graphic files, and similar media and/or data, to be used in connection with generating Actions hereunder (“Advertisements”). Publisher must obtain prior written approval from Ringlab for any Advertisements before using them. Additionally, Ringlab will have sole discretion regarding the creation of the ‘subject’ and ‘from’ lines used in any emails sent by Publisher. No other Creative may be used by Publisher in Advertisements without first obtaining express written permission from Ringlab. Publisher will remain fully liable for any Advertisements it provides to Ringlab for approval, even if such Advertisements are approved by Ringlab. If Ringlab decides to cancel the use of any Advertisements, Publisher must cease distribution and/or use of the Advertisements on Publisher Databases and Publisher Websites within twenty-four (24) hours of receiving Ringlab’s written request. Publisher will not edit, modify, deviate from, or otherwise change any Ringlab approved Creative for Advertisements without prior written approval from Ringlab. If Publisher makes any unapproved changes to the Advertisements, Ringlab reserves the right to withhold any amounts generated from or reclaim any previously paid amounts to Publisher (‘Forfeiture’). This Forfeiture is in addition to any other legal or equitable remedies available to Ringlab, including indemnification obligations arising under this Agreement.
8. Payment
8.1. Fees. Publisher will earn Fees on qualitied Actions as set forth in the Insertion Order or other Campaign-Specific Terms. Ringlab may modify or change the Fees at any time upon notice to Publisher, including by email, and at Ringlab’s sole discretion. Publisher’s continued participation in the Publisher Program after a change to the Fees constitutes acceptance of the revised Fees.
8.2. Payment Terms. All Fees will be paid in US Dollars ($USD) via Ringlab’s company check or other means expressly agreed upon in writing by both Parties. Payment terms will be outlined in the executed Insertion Order (IO), and Publisher shall submit invoices to Ringlab according to the specified terms in the IO. In the event that Publisher materially breaches the terms and conditions of this Agreement or, in Ringlab’s reasonable judgment, commits fraud, Ringlab reserves the right to withhold or, if payment has already been made, reclaim any and all amounts generated by Publisher. Additionally, Publisher will be responsible for paying any applicable taxes owed to taxing authorities related to its activities under this Agreement, excluding taxes based on Ringlab’s net income.
8.3. Publisher ID. It is Publisher’s sole responsibility to ensure that all Actions occur through the Publisher ID so that the Parties may each track Publisher’s Actions and Fees with accuracy. Where used in technical form, such as an affiliate link, Publisher agrees to monitor its Publisher ID to ensure its proper functioning. Publisher IDs may not be applied to Actions retroactively and Ringlab shall not be responsible for payment on any Actions generated outside of the Publisher ID.
8.4. Tracking and Disputes. Ringlab shall be exclusively responsible for tracking all Fees due to Publisher, which shall be visible to Publisher through reports. Ringlab will provide reports and Publisher agrees to invoice Publisher based on Publisher reporting. In the event that Publisher reasonably believes Ringlab’s tracking for a given calendar month is inaccurate, no later than seven (7) days after the close of such month, Publisher shall provide Ringlab with all evidence supporting the alleged error, and the Parties shall work together in good faith to resolve the matter to their mutual satisfaction. In the event the Parties are unable to agree, then Ringlab’s reasonable decision shall govern.
9. Fraud; Suspension of Publisher
9.1. Fraud. Ringlab has a zero-tolerance policy with respect to Publisher fraud. Without limiting any other provision of this Agreement, Ringlab reserves the right, in Ringlab’s sole and absolute discretion to terminate this Agreement and/or Publisher’s account, at any time without liability to Ringlab, should Ringlab determine, in its sole and absolute discretion, that Publisher engages in fraud, deception, dishonesty, unlawful acts, or any other misconduct that causes harm to Ringlab or its Advertisers (collectively, “Fraud”).
9.2. Forfeiture. If Ringlab determines that Publisher has engaged in Fraud, Publisher will forfeit its entire Fee for all Campaigns and Publisher’s account will be terminated immediately.
9.3. By Third-Party Publishers. Upon notice by Ringlab to Publisher that a Third-Party Publisher is engaging, or has engaged, in any activity prohibited by this Agreement, including, but not limited to, Fraud, Publisher shall immediately terminate its relationship with such Third-Party Publisher, as it pertains to the Third- Party Publisher’s participation in the Publisher Program. If Publisher is notified that a Third-Party Publisher is engaging, or has engaged, in prohibited activities, and Publisher fails to terminate its relationship with such Third-Party Publisher within three (3) days of notice by Ringlab, Ringlab reserves the right to immediately terminate this Agreement. Further, in the event that Ringlab determines, in its sole discretion, that a Third-Party Publisher is engaging, or has engaged, in prohibited activities, including Fraud, company shall recalculate and withhold the Publisher’s Fees accordingly. For clarity, Ringlab reserves the right to withhold or recalculate amounts generated by Fraud and other prohibited activity of Third-Party Publishers, regardless of whether Publisher participated in or knew about the prohibited activity.
10. Representations and Warranties
10.1. Mutual. Each Party represents and warrants to the other Party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a Party or by which it is otherwise bound; and (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each Party, enforceable against each party in accordance with its terms.
10.2. By Publisher. Publish represents and warrants that: (i) Publisher has all necessary rights and authority to enter into this Agreement and to place Advertisements on its website(s), social media accounts, through its personal email address, or those of its Third-Party Publishers and other partners (collectively, the “Publisher Media”); (ii) Publisher owns and/or has the right to use all materials contained on Publisher Media; (iii) the Publisher Media and the content contained on the Publisher Media will not infringe or violate the patents, copyrights, trademarks, rights of publicity, defamation, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (iv) Publisher will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules, and regulations, or industry standards, including without limitation, the various state and federal Do Not Call (“DNC“) laws, and those governing the National Do Not Call Registry (“NDNCR“) the CAN-SPAM Act of 2003 (“CAN-SPAM”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§17529, et seq. (“California’s Anti-Spam Act”), Canada’s Anti-Spam Law (“CASL”), the Telephone Consumer Protection Act, 47 U.S.C. §§227, et seq. (“TCPA”), the Amended Telemarketing Sales Rule (“ATSR“), the California Automatic Renewal Law, the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the General Data Protection Regulation (EU) 2016/679 (“GDPR“), the United Kingdom Data Protection Act of 1998 (as amended) (“UK Data Protection Act”), and the California Consumer Privacy Act (“CCPA”); and (v) Publisher has all necessary rights, certificates, licenses, and registrations to operate its business within its jurisdiction and has and will maintain all such licenses and registrations in good standing and has and will comply with all rules and regulations specific to its industry. To be clear, Publisher represents and warrants that it knows, understands, and complies with all applicable laws in both the jurisdiction where Publisher is located and the jurisdiction(s) in which Publisher conducts its advertising activities.
11. Confidentiality; Non-Circumvention
11.1. Confidentiality. Each Party agrees to use the other Party’s Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other Party’s Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving Party’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the Parties; (b) any disclosure is required by applicable law; provided, that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice thereof so as to afford the disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing Party. For the purposes of this Agreement, “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding any existing or contemplated Ringlab services, Suppression List(s), products, processes, techniques, or know-how, or any information or data developed as part of the Publisher Program. Upon completion or termination of the Agreement or the written request of the disclosing Party at any time, the receiving party shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to the disclosing Party or certify, if so requested, in writing that all copies of Confidential Information have been destroyed; except for material reasonably required to be maintained. The Parties agree and understand that a material breach of the confidentiality provisions of this Section will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the Parties agree that in such event, the non-breaching party shall, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief.
11.2. Non-Circumvention. Publisher recognizes that Ringlab has proprietary relationships with the Advertisers that obtain leads and other Actions from Ringlab, as well as third party Publishers, other than Publisher, that provide leads and other Actions to Ringlab pursuant to separate agreements (collectively, “Media Partners”). Publisher agrees not to circumvent Ringlab’s relationship with such Media Partners, or otherwise solicit, obtain, offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Publisher for any Media Partner that is known, or should reasonably be known, by Publisher to have such a relationship with Ringlab, during the term of the Agreement and for one (1) year following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Publisher can show that any such Media Partners already obtained such services from, or provided such services to, Publisher, as applicable, prior to the Effective Date of the Agreement, then Publisher shall not be prohibited from continuing such relationship. Publisher agrees that monetary damages for its breach, or threatened breach, of this Section will not be adequate and that Ringlab shall be entitled to: (i) injunctive relief (including temporary and preliminary relief); (ii) liquidated damages from Publisher in the amount equal to one hundred percent (100%) of the Fees received by, or paid by, Publisher from or to the subject Media Partner; and/or (iii) any and all other remedies available to Ringlab at law or in equity.
11.3. Non-Solicitation. The Parties agree that during the term of the Agreement and for a period of one (1) year thereafter, they will not directly or indirectly solicit the employment of any of the other Party’s employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section.
11.4. Lead Data. All lead information that is the result of an Action that is provided to Ringlab pursuant to the Agreement is the sole and exclusive property of Ringlab and/or its Advertisers. Publisher may not disclose or use such information for any purpose other than performing its obligations under the applicable Insertion Order and for no other purpose.
12. Disclaimer of Warranties
RINGLAB HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT PUBLISHER WILL GENERATE FEES THROUGH THE PUBLISHER PROGRAM. THE PUBLISHER PROGRAM, ALL CREATIVE, ALL WEBSITES AND ALL ADVERTISEMENTS PROVIDED BY RINGLAB ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, RINGLAB EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING, THE CREATIVE, THE PUBLISHER PROGRAM, CAMPAIGNS, ADVERTISEMENTS, SUPPRESSION LISTS, AND PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. RINGLAB DISCLAIMS ALL WARRANTIES THAT THE PUBLISHER PROGRAM WILL MEET PUBLISHER’S REQUIREMENTS OR EXPECTATIONS AND THAT THE OPERATION OF THE PUBLISHER PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE.
13. Limitations of Liability
EXCEPT AS TO ANY INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, AND FOR FRAUD, WILLFUL MISCONDUCT, AND GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, STATUTORY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR PROFITS) RESULTING FROM, ARISING OUT OF, OR RELATED TO ITS PERFORMANCE OR FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER, OR BREACH OF, THIS AGREEMENT, WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS TO ANY INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, AND FOR FRAUD, WILLFUL MISCONDUCT, AND GROSS NEGLIGENCE, EACH PARTY’S LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE AGGREGATE OF ALL AMOUNTS RECEIVED BY PUBLISHER FROM RINGLAB HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH LIABILITY. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. Mutual Indemnification
Both Publisher and Ringlab (collectively, the “Indemnitor”) agree to defend, indemnify, and hold harmless each other, along with their respective third-party partners, affiliates, directors, employees, agents, successors, and assigns (collectively, the “Indemnitee”), from and against all claims, actions, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and expenses) (collectively, “Claims”) arising from or related to: (i) any negligent act or omission by the Indemnitor, including any Fraud; (ii) any breach of this Agreement by the Indemnitor; (iii) any breach by the Indemnitor of any Campaign-Specific Terms; (iv) any violation or alleged violation by the Indemnitor of any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules, and regulations, or industry standards, including without limitation, the various state and federal Do Not Call (“DNC”) laws, and those governing the National Do Not Call Registry (“NDNCR”), CAN-SPAM, California’s Anti-Spam Act, CASL, the TCPA, the Amended Telemarketing Sales Rule (“ATSR”), the FTC Act, all FTC rules, regulations and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the CCPA, the GDPR, and the UK Data Protection Act; and (v) any violation or alleged violation by the Indemnitor of the rights of any third party.
The Indemnitee will provide the Indemnitor with prompt written notice of any Claim for which indemnification is sought, and the Indemnitor shall have the right to participate in, and, to the extent it desires, assume sole control of the defense thereof with counsel selected by the Indemnitor. However, the Indemnitee retains the absolute right to retain its own counsel, with fees and expenses to be paid by the Indemnitee. The Indemnitor will have no authority to stipulate to any judgment or settle any Claim on behalf of the Indemnitee without the Indemnitee’s written consent. Nothing in this Section shall limit any other remedies available to the Parties. These obligations will survive any termination of the Agreement.
15. Proprietary Rights
Publisher agrees that it does not have, nor will it claim, any right, title, or interest in the Publisher Program, the Creative, the Ringlab website or any underlying technology, software, applications, data, methods of doing business, or any elements thereof, or any content provided on the Ringlab website. Publisher may only access the Publisher via web browser, email, or in a manner approved by Ringlab. Affiliate shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Ringlab website tags, source codes, links, pixels, modules, or other data provided by or obtained from Ringlab that allows Ringlab to measure ad performance and provide the Publisher Program. In addition, Publisher acknowledges that all Publisher Program data, including but not limited to non-public information, data, and reports received by Publisher from Ringlab as part of the Publisher Program are proprietary to and owned by Ringlab, even if Publisher’s advertising activity contributed in some part to the data. If instructed to do so by Ringlab, Publisher will immediately destroy and discontinue the use of any such data and any other material owned by Ringlab or its third-party Advertisers.
16. Governing Law; Jurisdiction and Venue
16.1. Choice of Law. This Agreement, together any Exhibits, Insertion Orders or other Campaign-Specific Terms, shall be treated as though this Agreement were executed and performed in Maricopa County, Arizona and shall be governed and construed in accordance with the laws of the State of Arizona without regard to conflict of law principles.
16.2. Elective Arbitration. At the election of either Party, any dispute, of any nature whatsoever, between Publisher and Ringlab arising out of or relating to this Agreement, any Exhibits, Insertion Orders, and any Campaign-Specific Terms, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules. The tribunal will consist of a sole arbitrator. The seat of the arbitration will be Maricopa County, Arizona. The language to be used in the arbitral proceedings will be English. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fees) to the prevailing party. The Parties hereby acknowledge that without this provision, each would have the right to sue in court with a jury trial or to participate in a class action.
16.3. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude Publisher or Ringlab from seeking provisional remedies in aid of arbitration, including, without limitation, orders to stay a court action, compel arbitration, or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either Publisher or Ringlab from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary.
16.4. Venue. The exclusive venue for any non-arbitration action arising out of or under this agreement—including, without limitation, any litigation between the Parties where neither has elected to arbitrate, any motion to compel arbitration, any remedies in aid of arbitration, or any petitions for equitable relief—shall be the state and federal courts located in or nearest to Maricopa County, Arizona. The Parties hereby waive any objection to the venue or personal jurisdiction of such courts.
16.5. No Joinder of Claims. The Parties further agree that neither Party will join any legal claim with the claim of any other person or entity in a lawsuit, arbitration or other proceeding, that no legal claim will be resolved on a class-wide basis, and that neither Party will assert a claim in a representative capacity on behalf of anyone else.
17. Miscellaneous
17.1. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such Party.
17.2. Entire Agreement. This Agreement, together with all Exhibits, any Insertion Orders, and any other Campaign-Specific Terms, constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties, whether written or oral. If, as a technical requirement of providing the Publisher Program or vetting Publisher, Ringlab is required to accept terms and conditions on Publisher’s website or mobile app, such terms shall be of no binding effect and shall not modify this Agreement or the Parties’ relationship.
17.3. Assignment. Except in connection with a merger, acquisition, or sale of all or substantially all of Publisher’s assets related to this Agreement, Publisher may not assign this Agreement and its rights and obligations hereunder, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect. Ringlab may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, at any time, without Publisher’s consent.
17.4. Notices. Except as otherwise provided in this Agreement, all notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed email, express courier, or certified mail, return receipt requested, to the addresses designated from time to time by the Parties. Notice will be effective upon sending.
17.5. Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not affect a Party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach. If any provision of this Agreement is held to be invalid or unenforceable with respect to a Party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable, shall not be affected, and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
17.6. Independent Contractors. This Agreement does not establish a partnership, joint venture, agency relationship, or employer-employee status between the Parties. Neither Party has the right or authority to bind the other, nor will either Party be bound to any obligation to a third party. This Agreement is binding on and benefits the Parties, along with their respective successors and permitted assigns
17.7. Independent Counsel. Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either Party by reason of its drafting.
17.8. Trade Compliance. Publisher represents and warrants that it (i) is not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, (ii) is not identified as a “Specially Designated National;” by the Office of Foreign Assets Control, (iii) is not placed on the U.S. Commerce Department’s Denied Persons List, and (iv) will not collect information from consumers if any applicable laws in Publisher’s country prohibits it from doing so in accordance with this Agreement.
17.9. Changes. Ringlab may modify any of the terms and conditions contained in this Agreement, at any time and at its sole and absolute discretion, upon posting such changes on the Ringlab website or providing written notice to Publisher, including by email. Publisher’s continued participation in the Affiliate Program after any such modification thereof shall constitute Affiliate’s explicit consent to such modification.
17.10. Execution. This Agreement may be executed and delivered in counterparts by facsimile and/or electronic signature, each of which so executed and delivered counterpart is an original, and such counterparts, together, will constitute but one and the same instrument.