This insertion order, between Golden LinkPlus (GOLD) and Advertiser, sets forth the rights and obligations of each partywith respect to the advertising campaign described earlier in this document. Advertiserunderstands that the sole obligation of GOLD is to execute the referencedadvertising campaign as described in this insertion order.
1. PAYMENT: Advertiser agrees to pay GOLDfor all advertising published by GOLD, its assigns and/or affiliates, on a CPAbasis (Cost Per Action, Cost Per Acquisition or Cost Per Application) inaccordance with the terms of this document. All such actions, acquisitions, applications and/or other form ofpayable events herewith shall be referred to as “Actions”. Unless otherwisestated, GOLD will invoice advertiser at the end of each month for such Actionsas generated by GOLD for the corresponding month. Unless otherwise stated, Advertiser shallsend payment for each monthly invoice to GOLD within five (5) days of the endof billing month. GOLD will set amonthly credit limit for Advertiser. Should the credit limit be reached priorto the end of the monthly billing cycle, GOLD will pause campaign(s) andrequire immediate payment or reassessment of credit limit prior to re-launchand/or change net terms or frequency of invoicing. (For Advertisers basedoutside the United States, Advertiser also agrees to pay any wire fees thatAdvertiser’s banks, whether account holding or intermediary, deduct as a resultof sending payment). All payments not made within the (7) days of the due dateshall accrue interest at the rate of 1.5% per month, or the highest rateallowable by law, whichever is greater. Advertiser agrees that it shall be solely liable for payment to GOLD. Further, Advertiser represents and warrantsthat it will furnish payment on all invoices, notwithstanding any non-paymentto Advertiser by any third party including, without limitation, Advertiser’sclients. GOLD’s failure to invoiceAdvertiser shall not constitute the waiver of any amounts due to GOLD by Advertiserand/or GOLD’s breach of this insertion order. Should Advertiser and/or Clientdefault in the payment of any invoice, GOLD shall have the right to shortenpayment terms to Due Upon Receipt and/or require payment in advance forcontinued services, at the sole discretion of GOLD and without notice required.Advertiser agrees to pay all costs incurred by GOLD including, but not limitedto, collection agency and attorneys' fees and costs, as a result of having toenforce the terms of this insertion order. If Advertiser is unable to provide conversion information, and/or GOLD’stracking system fails to report Actions or reports less Actions than the actualamount, then Advertiser agrees to pay GOLD based on an estimate to benegotiated in good faith by the parties based on the data available to bothparties.
2. REPORTING: Reporting will be based onthe number of Actions as shown by GOLD’s own tracking methods, typically apixel placed on Advertiser’s site. Advertiser agrees to provide GOLD with final number of valid actions foreach month by the 7th of the following month or will be billed an additional 5%on top of GOLD’s reported number. Advertiser acknowledges that GOLD’s trackingof Actions may be subject at times to either under or over-reporting, andagrees to release its own transaction logs and other tracking records, ifrequested, to GOLD in the event of a discrepancy. Advertiser agrees to pay GOLD for all actionslegitimately caused by campaign placements made by GOLD or its affiliates whethertracked by GOLD or not. Conversely,should Advertiser find instances of GOLD over-reporting of Actions (showingmore Actions than Advertiser’s own tracking), Advertiser agrees to notify GOLDwithin 48 hours of occurrence of the actual number of Actions completed. In such case, GOLD agrees to provide detailedinformation on each over-reported Action if such information exists, andAdvertiser agrees to pay for any Actions that contain sufficient information toqualify said Action as legitimate. Inthe event that Advertiser and GOLD encounter under or over-reporting, bothparties agree to work diligently to resolve such discrepancies, and also agreeto work together to address any technical issues so as to eliminatediscrepancies in the future. GOLD mayaccept changes material to campaign specific details only by accepting suchterms in writing. Upon such acceptance, GOLD retains the right to effectrequested changes within forty-eight (48) business hours.
FOR ALL LEAD GENERATION CAMPAIGNS: A“valid” lead is defined as any Action generated that fires GOLD’s trackingpixel on the confirmation page and does not contain fraudulent information. Any Actions determined to be “invalid” thatdo contain obviously fraudulent information may be returned to GOLD within five(5) business days from month end. Thefollowing information must be included for all “invalid” returned Actions: transactionalidentification number, publisher identification number, date/time stamp,incoming IP address and reason for rejection. Should the Advertiser fail toprovide this information within the time frame allotted, then all potentialdisputes will be considered waived and the final numbers will be consideredfinal and billable.
FOR ALL CAMPAIGNS REQUIRING A CREDIT CARDTRANSACTION: A “valid” lead is defined as any Action generated that fires GOLD’stracking pixel on the confirmation page. Any Actions determined to be “invalid”that do contain obviously fraudulent information may be returned to GOLD withinfive (5) business days from month end. The following information must be included for all “invalid” returnedActions: transactional identificationnumber, publisher identification number, date/time stamp, incoming IP addressand reason for rejection. Should the Advertiser fail to provide thisinformation within the time frame allotted, then all potential disputes will beconsidered waived and the final numbers will be considered final and billable.
3. ADVERTISER REPRESENTATIONS: Advertiserrepresents and warrants that it holds required intellectual property rightsand/or licenses to permit the use of advertising materials by GOLD and GOLD’spublishers. Advertiser warrants thatits materials so provided to GOLD do not infringe on any third party'scopyright, patent, trademark, trade secret or other proprietary rights; do notviolate any law, statute, ordinance or regulation regarding the creation andmarketing of online materials including, without limitation, those governingfalse and/or deceptive advertising; and are not defamatory or trade libelous inany way.
4. ASSIGNMENT: Advertiser will not assign this insertion order without GOLD’sprior written consent. GOLD may assign all or a portion of its duties andobligations hereunder to any affiliate, successor and/or other third party.Subject to the foregoing, the terms of this insertion order will be fullybinding upon, inure to the benefit of and be enforceable by the parties’respective successors, heirs, executors, administrators and permittedassigns.
5. CREATIVE CONTROL:Advertiser will besolely responsible for creating, managing, editing, reviewing, cancelling andotherwise controlling the advertising banners, display creatives, textadvertisements and other materials issued to GOLD. Advertiser acknowledges that GOLD is actingonly as a passive distributor of such content. GOLD has no obligation toAdvertiser regarding the content of advertisements Advertiser places with GOLD. GOLD undertakes no responsibility to reviewthe content, or any affiliate-generated content, to determine whether any suchcontent may result in liability to third parties.
6. DISCLAIMER OF WARRANTIES: Both partiesprovide all services performed hereunder "AS IS" and hereby expresslydisclaim all warranties, expressed or implied, regarding their services or anyportion thereof, including any implied warranty of merchantability or fitnessfor a particular purpose and implied warranties arising from course of dealingor course of performance. Without limiting the generality of the foregoing,both parties specifically disclaim any warranty regarding: (1) the number ofindividuals who will see the content; and (2) any benefits that the other partymight obtain from the campaign. Neither party guarantees continuous oruninterrupted service to the campaign. Should advertiser’s campaign(s) beinterrupted, make-goods will be calculated based on the average conversion rateand number of clicks for each publisher during its normal period of operationfor the length of time that the interruption(s) last. Advertiser agrees tocompensate GOLD for this make-good. All numbers and amounts relating toconversions or leads contained in this insertion order are estimates only, andare not at all guaranteed by either party. Due to the nature of the advertisingmethods, over-delivery and under-delivery are typical. In the event that GOLDover-delivers (i.e. Advertiser orders and pays for 200 Actions and GOLDdelivers to the Advertiser 250 Actions) then Advertiser shall be liable forpayment of all overage up to three hundred percent (300%) of the amount orderedand pay such costs on net five (5) terms.
7. LIMITATIONS ON LIABILITY: In no eventshall either party be liable for any special, direct, indirect, incidental,actual, punitive or consequential damages, or for interrupted communications,lost data, lost revenue or lost profits arising out of, or in connection with,this insertion order. Under no circumstances shall either party be liable tothe other party or any third parties for an amount greater than the amountsreceived from Advertiser pursuant to this insertion order.
8. INDEMNITY: Advertiser agrees to indemnify,defend, and hold harmless GOLD, its parents, successors, subsidiaries, andaffiliates, and their respective directors, officers, agents and employees forany claims, liabilities, costs and expenses (including reasonable attorney’sfees) made against GOLD by a third party or parties or a government agency as aresult of: (i) any breach of the terms of this Agreement, including but notlimited to the foregoing representations and warranties; (ii) any claim arisingfrom the sale or license of Advertiser's goods or services; (iii) any violationof an applicable law, rule, or regulation by Advertiser; or (iv) any other act,omission or misrepresentation by Advertiser. GOLD agrees to indemnify, defend,and hold harmless Advertiser, its parents, successors, and subsidiaries, andtheir respective directors, officers, employees (the “Advertiser IndemnifiedParties”) for any claims, liabilities, costs and expenses (including reasonableattorney’s fees) made against the Advertiser by a third party or parties as a resultof acts of gross negligence or willful misconduct by GOLD. The indemnifyingparty may participate in the defense of the indemnified party at its ownexpense.
9. CONFIDENTIAL INFORMATION: NeitherAdvertiser nor GOLD shall disclose or use the other party’s confidentialinformation for any purpose other than the purposes contemplated by thisagreement, unless such disclosure or use is allowed by written permission ofthe other party. However, either partymay disclose the other party’s confidential information to the extent requiredby applicable law, but only after five (5) days prior written notification tothe other party of such required disclosure. Advertiser’s confidential information shall remain the property ofAdvertiser, and GOLD’s confidential information shall remain the property of GOLD. The parties shall not disclose any of theterms and conditions of this document to any third party without the expressprior written consent of the other party.
11. TERMINATION: Advertiser may terminatethis insertion order upon providing ten days written notice to GOLD. GOLD may terminate this insertion order uponproviding forty-eight (48) business hours notice. In either case, Advertiser shall remainliable for all costs incurred prior to termination.
12. E-MAIL SUPPRESSION LISTS: The partieshereby represent and warrant that they shall at all times fully comply with allapplicable state and federal statutes, rules and regulations with respect totheir respective businesses including, without limitation, CAN-SPAM and allother laws governing deceptive trade practices and/or online marketing and/oradvertising. In the event thatAdvertiser desires distribution of its campaigns via email, Advertiser agreesto provide a regularly updated suppression list to GOLD containing current unsubscriberequests in conformance with CAN-SPAM. GOLDagrees to include a physical address for Advertiser in the body of everye-mail. Advertiser must provide to GOLDits physical mailing address. IfAdvertiser fails to provide such mailing address, GOLD will use the physicalmailing address appearing in this insertion order.
13. JURISDICTION: This Agreement shall begoverned, construed, and enforced in accordance with the laws of theState of California, without regard to its conflict of laws rules. If any legal action is required to enforcethis contract, such will be filed with a court in or near Los Angeles,California.
14: SECURED OBLIGATIONS: Advertiser and/orClient’s payment of obligations under this contract shall be guaranteed by allgeneral corporate assets of Advertiser and/or Client, and not subordinated toany other obligations. In the case thata Personal Guaranty is required by GOLD in addition to such general corporateasset security, both forms of security shall be enforceable and separate andconcurrent collection actions may be undertaken to collect obligationshereunder. Further, if Advertiser creates or becomes an owner, partner orexecutive of a subsequent similar entity (an LLC, dba, soleproprietorship, partnership or any other form of business entity) in orderto conduct internet media buying or selling, campaign brokering, distributionof online ad campaigns or any other business conducted under thiscontract, that entity will assume full liability for all accountsowing under this contract, jointly and severally with Advertiser andClient, as applicable.
15. MISCELLANEOUS: This insertion ordershall be governed by, interpreted and construed in accordance with the laws ofthe State of California. The parties areindependent contractors and no agency, partnership, joint venture oremployer-employee relationship is intended or created hereby. This insertion order sets forth the entireunderstanding and agreement of the parties and supersedes any and all priororal or written agreements or understandings between the parties as to thesubject matter and may be changed only by a subsequent writing signed by bothparties. Unless otherwise stated, thisinsertion order is non-exclusive to either party and either party shall havethe right to enter into similar agreements with other third parties. Theparties hereby represent and warrant that they shall at all times fully complywith all applicable state and federal statutes, rules and regulations withrespect to their respective businesses including, without limitation lawsgoverning deceptive trade practices.