MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT (“Agreement”) is entered into as of the “Effective Date”) as indicated on the Insertion Order by and between SOLAR DIRECT MARKETING LLC (dba SENIOR DIRECT MARKETING), a New Jersey limited liability company (“Publisher”), and (“Advertiser”), as indicated on Insertion Order. Publisher and Advertiser are sometimes collectively referred to herein as the “Parties” and may be individually referred to as a “Party”.
- The Parties wish to enter into this Agreement for the purpose of governing various services to be provided by Publisher to Advertiser, which may include but not be limited to Publisher obtaining Leads (defined below) for Advertiser through Campaigns (defined below).
- Advertiser desires to engage Publisher to provide the services described herein, and Publisher desires to provide the services described herein to Advertiser, subject to the terms and conditions set forth below.
In consideration of the foregoing, the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending legally to be bound, covenant and agree as follows:
- Orders.The above recitals are hereby incorporated by reference. The particular services to be provided by Publisher will be more fully described in an Insertion Order, the form of which is attached hereto as Exhibit A (each, an “Order”). The terms of this Agreement shall govern all Orders. In the event of any discrepancy between the terms of this Agreement and Order, the particular terms in question contained in the Order shall control.
- Services.The services to be provided by Publisher include online and offline campaigns promoting or advertising Advertiser’s goods and/or services (“Offers”) for the purpose of generating Leads for Advertiser (each, a “Campaign”). As used herein, the term “Lead” shall mean a potential customer lead who has consented to be contacted via telephone by Advertiser for the purpose of Advertiser offering its goods and/or services to the Lead. Publisher shall perform the services as described in the Order in a timely and workmanlike manner. The services to be provided by Publisher in an Order may be provided directly by Publisher or through third-party vendors or partners designated by Publisher. The Parties shall work in good faith using commercially reasonable efforts to achieve all deadlines, goals, estimates, and costs set forth in the Order. Advertiser’s personnel, as well as the personnel of any third parties hired by Advertiser related to the services hereunder, must adhere to any applicable timelines contained in the Order. Missed deadlines relating to services, materials or information on the part of Advertiser, its personnel or its hired third Parties, will result in corresponding adjustments to applicable timelines at Publisher’s discretion and without liability to Publisher. In the event Advertiser desires to change or expand any of the services or deliverables under an Order, or shorten any applicable timelines, a written agreement between the Parties will be signed prior to commencement of the work or change, and Publisher reserves the right to charge all reasonable costs associated with such change. Publisher shall have the option to determine, in its sole reasonable discretion, the amount, frequency, and type of services and costs to be included in a Campaign (“Elements”) in order to fulfil on the intended scope of such Campaign and provided that such services comply with the first two sentences of this section. Any request by Advertiser to expand Elements may require, at Publisher’s discretion, an additional Order signed by both Parties.
- Qualified Lead Criteria. To be deemed a “Qualified Lead” eligible for payment, the Lead must contain valid user data. Non-qualified leads are returnable up to 10% of the total amount of leads delivered within the invoicing period, unless otherwise indicated in the order. Any returns must be received by the 5th day of each month for the preceding calendar month. In addition to any other requirements set forth in this Agreement or the relevant Order, a Lead delivered to a Client pursuant to an Order shall be deemed a “Non-Qualified Lead” for which no fee or payment shall be due if any of the following are true about the Lead:
- Has not provided express consent, as required under the Telephone Consumer Protection Act, the Amended Telephone Consumer Protection Act of 1991, and their state law equivalents (collectively, “TCPA”), to be contacted by the Client;
- Includes a phone number that does not function, is not owned by, assigned to or registered in the name of the user identified on a website form;
- Is generated using a form or placement within an incentivized traffic flow (e.g. where the user is offered a gift, prize, or other value for completing and/or submitting information) unless otherwise agreed upon;
- Is generated using any form, process or placement that is fraudulent in nature, intended to deceive or mislead, or that is generated by anyone other than an individual, human internet user;
- Is generated pursuant to an activity or process otherwise deemed a breach of any component part of this Agreement.
- If the consumer does not meet the criteria of the specific campaign as indicated within the Insertion Order.
- Advertiser Grant of License. Advertiser hereby gives Publisher, and any third-party vendors or partners contract by Publisher to provider services hereunder, all necessary licenses and use rights reasonably required to provide the services hereunder. Except as otherwise stated herein, such license and use rights shall end if Publisher is no longer providing such services.
- Publisher’s Responsibilities. Publisher shall comply with all applicable Laws, including but not limited to the Telephone Consumer Protection Act and the Amended Telephone Consumer Protection Act of 1991 (“TCPA”), their state law equivalents, or any other federal or state consumer protection and privacy laws. All Leads provided to Advertiser pursuant to an Order shall be TCPA compliant.
- Advertiser Responsibilities.Advertiser promises that it has and maintains all necessary and lawful intellectual property rights as required to provide the license and use rights to Publisher hereunder. Advertiser will promptly provide to Publisher all access to Advertiser’s accounts and systems that are reasonably necessary for Publisher to provide the services hereunder, such as access to Advertiser’s advertising style and brand guidelines, technology platforms, data, or other items that Publisher may request from time to time. Advertiser further promises that all advertising claims of Advertiser are lawful, truthful and substantiated, that it will fulfill all commitments made in its advertisements, and that it will comply with all applicable laws, including without limitation, any laws or regulations promulgated by the Federal Trade Commission, Consumer Financial Protection Bureau and any other governing authority over the provision of its ads, products, and services. Advertiser shall provide Publisher with all information and disclosures required by applicable law for all services contemplated hereunder. Advertiser agrees to provide Publisher with all reasonably required written evidence to substantiate advertising claims promptly upon request.
- Content Approval. All creative content utilized by Publisher hereunder and published or disseminated as a result of the services shall be reviewed by Advertiser, and must be approved in writing by Advertiser prior to any public use or dissemination. If requested by Publisher, Advertiser shall be required to utilize Publisher’s content review and approval system to document such written approvals; if not so requested, Advertiser’s approval shall be made in writing via email. Provided that Publisher does not alter or modify approved content (other than nonmaterial modifications reasonably necessary for technical compatibility), an approval by Advertiser shall constitute its representation that such content does not violate any applicable law or the rights of any third Party. Advertiser shall fully indemnify Publisher for any third-Party claims against Publisher as a result of Publisher’s use of Advertiser’s approved content.
- Term and Termination. This Agreement shall be in effect as of the Effective Date and shall remain in effect until terminated pursuant to the terms of this Agreement. Each Order shall have its own term. Unless otherwise stated in the Order, the Parties’ termination rights for an Order shall be that a Party may only terminate for cause pursuant to section 7(a) below.
- Termination for Cause. In the event that a Party is in material breach of an Order, the non-breaching Party may terminate the Order provided that it gives written notice of the breach to the breaching Party and the breaching Party fails to cure the breach within 15 days from the date notice was given. In such an event, termination shall be as of the expiration of the aforementioned cure period. If Advertiser is in breach of its payment obligations and cures its breach within the cure period but subsequently breaches its payment obligations again, Publisher may, at its option, terminate the Order immediately upon the second breach. This Agreement (and consequently, all associated Orders) shall be terminated upon: (i) one Party ceasing to conduct business, becoming or being declared by a federal bankruptcy court to be insolvent or bankrupt, or being the subject of any proceeding under the federal bankruptcy code relating to its insolvency that is not dismissed within 60 days; (ii) the appointment of a receiver for all or any portion of a Party's business or operations; or (iii) the assignment of all or substantially all the assets of a Party for the benefit of creditors. In the event Advertiser engages in any of the actions described in the preceding sentence, Advertiser acknowledges and agrees that Publisher shall maintain priority for payment of amounts due and owing to Publisher in any such proceedings or assignments, and Advertiser agrees to use all best efforts to effectuate the same.
- Termination for Convenience and Lapse. Provided there are no Orders in current force or effect, either Party may terminate this Agreement for any or no reason upon 30 days’ prior written notice to the other Party. In the event there are no Orders in current force or effect and unless otherwise terminated under the preceding sentence, this Agreement shall automatically terminate at the expiration of 12 months following the termination or expiration of the last Order.
- Survival. All the terms of this Agreement that reasonably may be interpreted as surviving termination of this Agreement shall survive the termination of this Agreement. Without limiting the foregoing, the following sections shall specifically survive the termination of this Agreement: 3, 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18.
- Effect of Termination. In the event that Advertiser terminates this Agreement or an Order other than for cause due to Publisher’s material breach, Advertiser shall pay all costs and service charges incurred through the effective date of termination, including any future non-cancellable commitments. Advertiser’s obligation for payment under this section shall be in addition to and not in lieu of any other remedies Publisher may have under applicable law.
- Ownership of Deliverables. Advertiser shall retain all right, title and interest in and to all content and deliverables provided by Advertiser to Publisher for it to perform the services set forth in any Order. Any content or deliverables developed by Publisher for services shall not be deemed “works-made-for-hire” on behalf of Advertiser and Publisher shall retain all right, title and interest in and to all such content or deliverables; provided, however, that branded URLs and other intellectual property already owned by Advertiser (such as trademarks and logos) shall at all times remain the property of Advertiser.
- Payment and Payment Liability.
- Invoicing and Payment. Payment terms for each Campaign shall be set forth in the applicable Order. Unless otherwise provided in the Order, Publisher will invoice Advertiser weekly or upon the earlier expiration or termination of this Agreement or relevant contract, for the services provided in the previous week. Advertisers shall pay all invoices no later than seven (7) business days following the receipt of an invoice. Depending on the type of campaign, Publisher reserves the right to require some or all of the payment in advance. For any travel authorized by Advertiser, Publisher shall invoice Advertiser for Publisher’s reasonable expenses related to such travel. Publisher will pay all taxes on its income and all taxes and insurance associated with its personnel. Advertiser will pay all applicable sales, use, service, value-added, consumption or other such taxes associated with Advertiser’s receipt of services and deliverables.
- Late Fees. Where any invoice is overdue by more than ten days, without limiting its other remedies under this Agreement, Publisher may suspend the provision of services under any contract until the overdue payment is made (and any target completion dates in the contract will be adjusted accordingly to allow for the period of suspension, at no further liability to Publisher); and any amount due to Publisher will bear interest, to accrue from day-to-day at a rate of 1.5% per month, or the highest amount allowed by applicable law, whichever is lower, from the date such amount was first due until it is paid in full.
- Payment and Contract Liability. Publisher may contract with certain third-party vendors or partners to provide the services hereunder. Advertiser understands and agrees that certain vendor costs may be considered “pass-through” costs, meaning that while Publisher will typically pay these costs directly to the vendors, Advertiser is ultimately responsible for all such costs. Publisher will charge the costs to the Advertiser, and thus the costs are “passed through” from Publisher to Advertiser. Advertiser shall be held directly liable for payment of such pass-through costs to the extent that payment from Advertiser to Publisher has not timely cleared; Advertiser understands that Advertiser is Publisher’s disclosed principal, and Publisher, as agent, has no obligations relating to such payments that have not timely cleared, either joint or several. Upon request, Advertiser will make available to Publisher written confirmation of the relationship between Advertiser and Publisher, which shall include, without limitation, Advertiser’s acknowledgement that Publisher is its agent and is authorized to act on its behalf in connection with this Agreement and all Orders; in addition, upon the request of Publisher, Advertiser will confirm in writing whether Advertiser has paid to Publisher in advance, funds sufficient to make payments pursuant to an Order. In the event that Publisher executes a Campaign on behalf of Advertiser hereunder and enters into contracts with vendors that are similar to industry-standard agreements (such as the IAB version 3.0 contract available here http://www.iab.net/media/file/IAB_4As-tsandcs-FINAL.pdf, or the standard terms and conditions of large publishers such as without limitation Google, Yahoo, Bing, Microsoft and Apple), Advertiser agrees that it shall automatically be entered into and bound by such contracts and that it shall fulfill the role of “Advertiser” or other similar role as such agreements provide.
- Data. Through the course of providing services hereunder, Publisher may be exposed to, collect, or require use of certain data related to websites, Campaigns and Leads (collectively, “Data”).
- Customer Anonymous Information. “Customer Anonymous Information” means any non-personally identifiable information about persons or entities that is generated under this Agreement, whether generated on websites or technologies owned by Advertiser, Publisher or third parties, including without limitation, all aggregated or individual anonymous demographic information and browser cache data. Customer Anonymous Information may identify Advertiser’s industry or vertical but shall not identify Advertiser. Customer Anonymous Information is not Customer Personal Information.
- Customer Personal Information. “Customer Personal Information” means any personally identifiable information about persons or entities that Publisher obtains on behalf of Advertiser under this Agreement when generated on websites or technologies owned by Advertiser or Publisher on behalf of Advertiser, which concerns prospective and existing customers of Advertiser, including without limitation, names, addresses, telephone numbers, email addresses, social security information, credit card information, and call-detail information. Customer Personal Information does not include any Customer Anonymous Information.
- Ownership and Use. Advertiser exclusively owns all right, title, and interest in and to Customer Personal Information. Customer Personal Information is Confidential Information of Advertiser under this Agreement. Publisher may collect, store, access, use, process, maintain and disclose Customer Personal Information only to fulfill its performance obligations under this Agreement and for no other purpose. Advertiser exclusively owns all right, title, and interest in and to Customer Anonymous Information but only to the extent that such Customer Anonymous Information is generated on websites or technology owned by Advertiser or Publisher on behalf of Advertiser. Notwithstanding Confidentiality section below, Publisher shall have a perpetual license to collect, store, access, use, process, maintain and disclose Customer Anonymous Information for the purposes of reporting, analyzing, and optimizing the performance of advertising campaigns with Advertiser or with third parties. To the extent that Customer Anonymous Information is generated on websites or technologies not owned by Advertiser, Advertiser shall not have ownership or use rights over such Customer Anonymous Information.
- Confidentiality.Each Party may be given access to the other Party’s Confidential Information during the course of this Agreement. As used herein, “Confidential Information” shall mean any information shared under this Agreement, whether or not such information is disclosed as confidential either orally or in writing, including without limitation: the terms of this Agreement; any customer, vendor or financial information; any marketing plans, services, or data; or any information that by its nature would reasonably be understood to be confidential. Notwithstanding the foregoing, Confidential Information shall not be considered any of the following: (i) information which becomes generally known to the public through no act or failure to act by receiving Party; (ii) information that was known by the receiving Party before receiving such information; (iii) information that is hereafter rightfully obtained by the receiving Party from a third party without breach of any obligation to the disclosing Party; (iv) information that is independently developed by the receiving Party without use of or reference to the Confidential Information by persons who had no access to the Confidential Information; (v) Campaign Materials or Campaign Metrics (defined below); or (vi) Data which is not owned by the disclosing Party. Using at least the same degree of care for its own confidential and proprietary information but in any event no less than a commercially reasonable standard of care, the receiving Party shall have a duty to safeguard, keep confidential and secure, and prevent unauthorized use and disclosure of all Confidential Information it receives from disclosing Party hereunder. Excepting trade secrets, which shall be held confidential for an indefinite period of time or until such trade secret becomes public knowledge through no act or failure to act of receiving Party, the receiving Party shall safeguard all Confidential Information as required hereunder for a period of five (5) years from the date and time of disclosure. Receiving Party may disclose the Confidential Information to those staff, advisors and vendors who need to know such Confidential Information as is reasonably necessary for receiving Party to carry out its duties hereunder; provided that all such Parties are under an obligation of confidentiality at least as restrictive as that set forth herein. The receiving Party may also disclose the Confidential Information as required under applicable law or judicial or administrative order, provided that disclosing Party is notified with a reasonable time for disclosing Party, at its own expense, to make its own objections and protective orders. Except to the extent that Confidential Information is required for services continuing hereunder, at any time a disclosing Party may request in writing, and receiving Party shall promptly comply, that receiving Party return and destroy any or all of the disclosing Party’s Confidential Information held hereunder.
- Marketing.Notwithstanding Publisher’s confidentiality obligations hereunder, Publisher may use Advertiser’s name, logos, and Campaign Materials for the purposes of agency marketing communications and marketing Publisher’s services to third parties. “Campaign Materials” is defined as: (a) any content utilized or developed by Publisher on behalf of Advertiser that has been publicly-disseminated, including without limitation, banners, websites, emails and text ads; and (b) any information relating to project or campaign executed by Publisher on behalf of Advertiser, including without limitation, sales, performance and user metrics (“Campaign Metrics”); provided, however, that Campaign Metrics shall only be shared in an aggregated, non-specific or obscured format, and shall not be used to relay any specific information or data, including without limitation the disclosure of any Customer Personal Information, or accurate Advertiser financial information. As examples of the foregoing, without limitation, Publisher shall be allowed to: (i) share increased sales information where actual financials are not used but where general trends may be determined; or (ii) share increased customer engagement or demographic targeting where such information is aggregated to only show general trends and insights but not disclose user-specific or personally-identifiable information.
- Indemnification.In addition to any of Advertiser’s indemnification obligations described in other sections of this Agreement, Advertiser shall fully indemnify, defend and hold harmless Publisher for any third-party claims against Publisher that arise as a result of Advertiser’s products, services or advertising claims, its breach of applicable law or its breach of this Agreement, or of Publisher’s authorized use of data supplied by Advertiser. Publisher shall fully indemnify, defend and hold harmless Advertiser for any third-party claims against Advertiser that arise as a result of Publisher’s use of unapproved content or its breach of this Agreement. Each Party shall be required to give prompt notice to the other of any third-party claims, and no indemnifying Party may settle a claim or a dispute that creates fault or liability for the indemnified Party without the indemnified Party’s prior written consent.
- Limitation of Liability.Notwithstanding the Parties’ indemnification obligations hereunder, neither Party shall be liable to the other for: (i) incidental, special punitive, indirect or consequential damages of any kind, including lost profits, lost data, lost revenues, loss of business opportunity, or harm to reputation or brand, whether or not either Party was aware or should have been aware of the possibility of such damages; or (ii) a total aggregate liability hereunder, if any, exceeding the amounts paid or payable hereunder in the one (1) year immediately-preceding the circumstance which gave rise to the claim. The limitations under this section shall not apply to any Indemnification and Confidentiality provisions.
- Disclaimer of Guarantees and Warranties.Except as otherwise explicitly stated herein, the services and deliverables are sold “as is” and Publisher makes no other warranties (express or implied) with respect to the performance of its services or deliverables, including without limitation, any guaranty for performance or specific action or result, or implied warranties of merchantability and fitness for a particular purposes. Publisher shall not be liable for any unavailability of services or deliverable for reasons beyond Publisher’s reasonable control.
- Non-Circumvention. Advertiser hereby acknowledges that Publisher maintains direct contractual relationships with certain third-party companies who sell goods or other services to Publisher for Publisher’s use in the provision of the services to Advertiser, (“Vendors”). Advertiser further acknowledges that Publisher has invested considerable resources and intellectual property in the establishment of its direct contractual relationships with the Vendors, and that Publisher would suffer harm if Advertiser were to circumvent Publisher and contract directly or indirectly with the Vendors. Therefore, Advertiser hereby agrees that during the term of this Agreement and any agreement currently binding the Parties, and for a period of one (1) year following termination of this Agreement, Advertiser shall not knowingly, nor shall it knowingly permit any third party acting on its behalf to, directly or indirectly, in any manner solicit or purchase any advertising services from any Vendor who provided services to Publisher in connection with this Agreement, including but not limited to any Vendor which becomes known to Advertiser via any technical evaluation, examination or analysis conducted by Advertiser of Publisher’s inbound traffic, without the express prior written permission of Publisher. Such permission shall not be unreasonably withheld in the event that Advertiser knowingly: (a) had a direct contractual relationship with the Vendor in question that was current and valid as of the Effective Date; and (b) was actively purchasing and trafficking advertising from the Vendor in question during the three (3) months prior to the Effective Date of this Agreement. If a Vendor used by Publisher for Advertiser approaches Advertiser in order to circumvent Publisher, Advertiser agrees that it shall notify Publisher of such actions within a reasonable time period.
- Non-Solicitation. For the term of this Agreement and for one (1) year thereafter, Advertiser shall not, without the prior written consent of Publisher, directly solicit for employment any person employed by Publisher.
- Governing Law and Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of or matter arising out of this Agreement shall be brought exclusively in the state or federal courts of Clark County, Nevada, and each of the Parties hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any suit, action or proceeding. This Agreement shall be construed in accordance with and governed by the laws of the State of Nevada.
- Attorneys’ Fees. In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing Party in such dispute shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
- Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
- Successors and Assigns. Neither Party may assign this Agreement, in whole nor in part, without the other Party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may automatically assign its rights and obligations hereunder to: (a) any corporation or entity resulting from any merger, consolidation, or other reorganization of such Party; (b) any individual or entity to which such Party may transfer substantially all of the assets and business of such Party; or (c) any entity that controls, is controlled by, or is under common control with such Party, or of which such Party beneficially owns at least fifty percent (50%) of the equity interest therein. All the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and permitted assigns.
- Force Majeure. Neither Party is subject to, and neither Party shall be liable for, delays, failures to perform, damages, losses or destruction, or malfunction of any equipment or any consequence thereof caused or occasioned by, or due to acts of terrorism, fire, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment for supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the parties reasonable control (“Force Majeure Event”). Notwithstanding the foregoing, Advertiser shall not be relieved of its obligation to make timely payments of any amounts due under this Agreement or an Order due to a Force Majeure Event.
- Independent Contractors. Publisher will perform hereunder as an independent contractor of Advertiser solely for the purpose of carrying out the provisions of this Agreement, and this Agreement will not be construed to create any partnership, joint venture, agency or employment relationship between Publisher and Advertiser.
- Counterparts. This Agreement and any Order may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document, and delivered to the other by means of electronic transmission.
- Waiver and Remedies. No term or provision hereof shall be deemed waived and no breach excused unless such waiver shall be in writing and signed by the Party claimed to have waived or consented. No course of dealing or failure of either Party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of such term, right or condition. The remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
- Notice. Unless otherwise provided herein, notice from one Party to the other shall be made in writing to the address provided below, or to another address as directed by a Party from time to time as provided in this section, and notice shall be deemed given as of the expiration of the third business day from the day such notice is deposited for delivery, as evidenced by written proof of such deposit.
- Entire Agreement and Headings. This Agreement and the attachments hereto shall constitute the entire Agreement between the Parties with respect to the subject matter of this Agreement and supersede all existing oral and contemporaneous or written contracts or agreements between the Parties. Headings are provided for convenience purposes and shall not be used to construe or interpret the terms of this Agreement.
The Parties have executed this Agreement by their authorized representatives as of the Effective Date. By signing the Insertion Order, all Parties agree to this Agreement.