Terms and Conditions
PUBLISHER AND AFFILIATE SERVICES AGREEMENT
This publisher and affiliate services agreement (this “Agreement”) is made by and agreed to between Survey Sampling International, LLC, a limited liability company formed in accordance with the laws of the State of Delaware, USA, with its principal place of business located at 6 Research Drive, Shelton, Connecticut 06484 USA (“SSI”) and you (“Publisher” or “You” and SSI and Publisher shall be referred to herein individually each as a “Party” and collectively as the “Parties”). SSI has developed a performance based marketing program for affiliates and publishers to promote certain types of offers for SSI and/or SSI’s clients (the “Program”). The activities of the affiliates and publishers are intended to drive traffic through certain marketing, promotional, and/or advertising activities and campaigns (e.g., email marketing, text/SMS marketing, co-registration/co-sponsorship, online ad display, and endorsement/testimonial/blog marketing, etc.) as permitted by SSI. The Program will enable Publisher to accept certain offers and to promote, advertise, and market the offers, in accordance with this Agreement and the terms set forth in each applicable offer.
- Participation in the Program; Program Terms.
- The Program Generally. During the term of the Agreement, Publisher may accept to perform certain marketing and advertising activities and services connected to or related to certain offers (e.g., survey recruitment, panel recruitment, etc.) from or through SSI. The offers may be for SSI or for SSI’s clients. The marketing and advertising services may include, without limitation, online banner ad display, email marketing, SMS/text message marketing, co-registration/co-sponsorship marketing, and/or blog/testimonial/endorsement marketing (collectively the “Services”). The specific terms for each offer shall be as set forth in an offer available through the Program and/or through a work order, purchase order, or insertion order (collectively referred to herein as a Work Order). The form of each Work Order shall be as provided by SSI and each Work Order is incorporated herein and made a part hereof. In addition, the parties may exchange emails or other communications regarding the Services and the Services agreed upon in connection with such emails or other communications shall be subject to the terms of this Agreement, even if a formal Work Order is not executed and the email exchange(s) shall be considered to be a Work Order hereunder. This Agreement together with all Work Orders shall be referred to hereinafter as the “Agreement.”
- Updated Information. Publisher agrees to provide SSI with updated information of Publisher, of any Sub-Publishers (as defined herein) and about the Services (including, without limitation, information and documentation to enable SSI to review and approve certain activities). SSI reserves the right to review and approve all aspects of the Services to be performed in connection with this Agreement and Publisher shall fully cooperate with all requests from SSI in connection with such review and approval process.
- Prohibited Activity. Neither Publisher nor any Sub-Publisher may engage in any activity, whether with SSI or with any consumer, that may be misleading, deceptive, or fraudulent, or constituting a lack of good-faith and fair dealings. If SSI determines, in its sole discretion, that Publisher and/or any Sub-Publisher has acted in a misleading, deceptive, or fraudulent manner or in a manner that does not constitute acting in good-faith and fair dealings or that is in breach or violation of the terms of this Agreement, SSI may, in addition to any and all other remedies, withhold, and refuse to pay, any compensation that may otherwise have been due and owing to Publisher and suspend or terminate this Agreement and/or any Work Order.
- Publisher and each Sub-Publisher agrees to maintain an SSI provided tracking code to ensure proper tracking of all leads, conversions, completed activities, and/or other similar or related activity resulting or relating from individuals sourced by or through Publisher and each applicable Sub-Publisher. Publisher hereby further agrees that SSI is not, and will not be, liable or responsible for any errors or issues in connection with the SSI provided tracking code, which fail to properly, accurately, or completely track such leads, conversions, completed activities, and/or other similar or related activity resulting from or relating to individuals sourced by or through Publisher and each applicable Sub-Publisher. In the event of any such issues or errors, SSI will estimate the payment due and owing to Publisher and such payment shall be final and binding. Publisher agrees that the parties shall rely on the reporting/tracking system utilized by SSI to track and report on the performance of the Services and the data recorded by SSI’s reporting/tracking system shall be final and binding.
- Publisher shall be provided with a limited, non-transferrable, non-sub-licensable, revocable license to access SSI’s tracking and reporting tools and support services, if any, solely for the purpose of tracking Publisher’s Services to: (i) ensure compliance with the terms of this Agreement and each Work Order, (ii) performance of the Services, and (iii) ensure proper invoicing/billing. Upon receipt of notice from SSI or termination of this Agreement, Publisher’s limited license shall immediately terminate. SSI reserves the right, from time-to-time, to charge or impose a fee for access to SSI’s tracking and reporting tools, systems, and support services, which fee shall be effective upon Publisher’s receipt of notice from SSI.
- Publisher’s Account. Publisher agrees that Publisher is solely liable and responsible for all usage and activity in connection with Publisher’s account and for loss, theft, or unauthorized use or disclosure of Publisher’s account access information, other than as caused by or through SSI’s grossly negligent acts or omissions or willful misconduct. In the event that Publisher receives or has any notice of any actual or potential misuse of, or unauthorized activity in connection with, Publisher’s account, or of any loss, theft, or unauthorized use or disclosure of Publisher’s account access information, Publisher will provide SSI with immediate written notice. Publisher hereby expressly acknowledges and agrees that Publisher shall not be entitled to receive payments via check unless or until Publisher’s account has accumulated fees in the amount of Twenty Dollars ($20.00).
- Changes to a Work Order. All changes to the Services shall be set forth in a new or modified Work Order, which shall be subject to the review and approval of the authorized representatives of each party.
- SSI Property. All content and/or material provided by SSI to Publisher for use in performing the Services (“SSI Property”) are and will remain the sole and exclusive property of SSI and will only be used for and in connection with the Services. SSI Property may not be modified or altered without the prior express written consent of SSI. SSI grants a limited, non-transferrable, non-sub-licensable, revocable license to use SSI Property solely for the performance of the Services under a Work Order and for no other purpose. Publisher agrees that it will protect and secure the SSI Property from unauthorized use and/or disclosure using commercially reasonable practices, methods, and procedures. In the event of the unauthorized use and/or disclosure of any SSI Property by Publisher and/or any Sub-Publisher, Publisher will provide SSI with immediate written notice. Publisher and each Sub-Publisher will not be used in a manner that may cast SSI or SSI’s client(s) in a negative or unfavorable position or light.
(a) If the Publisher is an affiliate network, Publisher may, without providing prior written notice to, and without receiving prior written consent from, SSI, subcontract the performance of the Services, whether in whole or in part, to any third party or third person. Publisher is and will be responsible for ensuring that Publisher’s suppliers, publishers, Publishers, and/or affiliates (each a “Sub-Publisher” and collectively the “Sub-Publishers”) comply with this Agreement. The breach of this Agreement by any Sub-Publisher is, and will be classified as, a breach of this Agreement by Publisher. Publisher agrees it has entered, or will enter, into a written contract with each Sub-Publisher, which contains terms that are the same or substantially similar to those contained in this Agreement and which prohibit Sub-Publishers from subcontracting the Services.
(b) If the Publisher is not an affiliate network, Publisher may not, without providing prior written notice to, and without receiving prior written consent from, SSI, subcontract the performance of the Services, whether in whole or in part, to any third party or third person. Publisher is and will be responsible for ensuring that Publisher’s suppliers, publishers, Publishers, and/or affiliates (each a “Sub-Publisher” and collectively the “Sub-Publishers”) comply with this Agreement. The breach of this Agreement by any Sub-Publisher is, and will be classified as, a breach of this Agreement by Publisher. Publisher agrees it has entered, or will enter, into a written contract with each Sub-Publisher, which contains terms that are the same or substantially similar to those contained in this Agreement and which prohibit Sub-Publishers from subcontracting the Services.
- Non-Solicitation. If the Services involve activities performed for or in connection with an SSI client project, Publisher agrees: (i) that Publisher and/or each Sub-Publisher will only communicate with SSI in connection with each such project, regardless of whether Publisher and/or any Sub-Publisher have a separate business relationship with SSI’s client; and (ii) Publisher will not, directly or indirectly, solicit or attempt to solicit SSI’s client for or in connection with such project.
- Work Product. As between SSI and Publisher and/or any Sub-Publisher, SSI does and will own all right, title, and interest in and to all deliverables and/or work product delivered and/or created by or on behalf of Publisher in connection with this Agreement, including, without limitation, all reports and survey data (“Work Product”) and Publisher and each Sub-Publisher hereby agree to execute any and all documents to effectuate the assignment to SSI of any right(s) they may have in and to Work Product.
- Third Party Material. Publisher agrees it will not, without the prior express written consent of SSI, use any proprietary and/or confidential material or information, and/or intellectual property, of any third party (“Third Party Materials”) in the performance of the Services or the creation of the Work Product. Publisher is liable and responsible for obtaining and maintaining all appropriate licenses and consents for the use of Third Party Materials, including, without limitation the right for SSI and/or SSI’s clients to use, sublicense, and distribute the Third Party Material in connection with SSI’s and/or SSI’s clients normal business operations.
- Email Marketing Services.
(i) Publisher and each Sub-Publisher shall ensure that the addresses on its email lists are entirely “opt-in,” meaning that the email recipient has consented, in accordance to Applicable Laws (as defined herein), and has not subsequently revoked consent.
(ii) Neither Publisher nor any Sub-Publisher will use any list that has been purchased, leased, or licensed from a third party without the prior express written consent of SSI, which consent may be withheld, conditioned, delayed, or denied in SSI’s sole discretion.
(iii) Neither Publisher nor any Sub-Publisher shall perform the Services using email addresses that have been gathered or collected in any automated process, harvesting, or screen scraping, or as the result of any random email generation system or software.
(iv) Publisher and each Sub-Publisher shall maintain an internal do not email list and shall perform an email scrub against such list immediately prior to sending or transmitting any emails in connection with the Services.
(v) Upon request from SSI, Publisher shall provide SSI with all information requested by SSI to verify and validate the email lists, including, without limitation, information on how the email lists were created, evidence of opt-in consent, copies of applicable privacy policies, etc.
(vi) Neither Publisher nor any Sub-Publisher shall transmit or send emails containing offers for SSI or SSI’s clients through open proxies, from email or internet protocol addresses registered through fraud or false pretenses, or through any means in violation of an internet service provider’s policies. Upon SSI’s request, Publisher shall promptly provide a full list of domain names, routing information, and IP addresses that will be, or are being, or were, used to send emails in connection with the Services. In the event that Publishers and/or any Sub-Publisher’s internet protocol addresses or domain names are mass-blocked or black-listed, Publisher will immediately provide written notice to SSI and SSI may terminate this Agreement.
(vii) For all emails sent in connection with the Services, Publisher or the applicable Sub-Publisher shall be the sender of the emails and Publisher or the Sub-Publisher(s) shall comply with all requirements imposed upon a sender of emails under Applicable Laws.
(viii) Publisher agrees on behalf of Publisher and each Sub-Publisher that emails sent in connection with the Services shall comply with the following requirements:
- All header and footer information must be accurate and not contain any false, misleading, or deceptive information or content. The foregoing includes all information related to the sender of the email communication, which must identify Publisher or the applicable Sub-Publisher as the sender of the emails.
- Emails must not use any false or deceptive information or content in the subject line. The subject line of an email distributed in connection with the Services must accurately reflect the content of the email message. If the email contains an advertisement, then the subject line must reflect and communicate that the email contains an advertisement.
- Within the body of the email, in a separate, stand-alone paragraph, apart from the footer or any opt-out language, and in font that is the same color and in the same size and font-type or style as the text used in the body of the email, the Publisher and each Sub-Publisher must identify that the email recipient is receiving this email communication from the Publisher or the Sub-Publisher, as the case may be, as a result of the email recipient opting in or otherwise agreeing to receive communications from the sender of the email.
- Emails distributed in connection with the Services must include a valid physical postal address for Publisher or the Sub-Publisher, as applicable.
- Emails distributed in connection with the Services must include a clear and conspicuous explanation of how email recipients can opt-out of receiving emails from Publisher or the Sub-Publisher in the future. The opt-out notice must be easy for an ordinary person to recognize, read, and understand. The opt-out process must not require the email recipient to disclose or provide any personal data, other than the email recipient’s email address, to effectuate the opt-out request.
- Opt-out requests should be processed by Publisher or Sub-Publisher, as applicable, in accordance with Applicable Laws.
1.15 Suppression Lists. Publisher will, and will ensure that all Sub-Publishers, process, administer, and implement all suppression lists provided by, or on behalf of, SSI, in accordance with Applicable Laws and the instructions provided by SSI. Publisher agrees, on behalf of Publisher and each Sub-Publisher, as follows:
- All personal information contained within suppression lists provided by SSI constitute SSI’s confidential information subject to the terms set forth herein.
- Publisher and/or each Sub-Publisher will only use the personal information contained in suppression lists for the purpose of scrubbing Publisher’s and/or any Sub-Publisher’s lists to exclude individuals who have opted out from receiving email communications from SSI and/or SSI’s clients.
- All personal information contained within suppression lists will be transferred, protected, and secured using appropriate administrative, technical, and physical safeguards and practices to protect against any unauthorized access to, or transfer, disclosure, or use of, the personal information.
- when the personal information contained in the suppression lists is of or about individuals located in any member state of the European Union (“EU”), the European Economic Area (“EEA”), or Switzerland, all transfers or exporting of personal data shall comply with all Applicable Laws.
- Publishers and/or Sub-Publishers will delete suppression lists within one (1) week of mailing. Additionally, upon request from SSI or upon the termination of this Agreement, whichever occurs first, Publisher will, and will cause all Sub-Publishers to, destroy and/or delete and erase all suppression and all personal information contained therein or derived therefrom and to cause a duly authorized representative of Publisher to certify compliance with the requirements set forth in this sub-section.
- Publisher and each Sub-Publisher will scrub against their lists within the period prescribed by Applicable Laws.
1.16 Failure to Deliver Services. If a Publisher and/or any Sub-Publisher fails to deliver, by the end of the applicable term or period set forth in a Work Order, the total number of survey completes, actions, deliverables, and/or leads identified in the applicable Work Order, SSI may, in addition to any other remedy available to it, require at its sole option, that Publisher and/or any Sub-Publisher: (1) refund to SSI any amounts paid by SSI to Publisher and/or any Sub-Publisher for the undelivered survey completes, actions, deliverables, and/or leads; (2) provide additional survey completes, actions, deliverables, and/or leads, up to the amount paid by SSI for the undelivered survey completes, actions, deliverables, and/or leads by Publisher and/or any Sub-Publisher, at no cost and expense; and (3) agree to extend the period for performance under the applicable Work Order.
1.17 Evidence of Consent for Communications. In connection with the Services, Publisher and/or Sub-Publishers may send, transmit, or make certain communications, including, without limitation, SMS/Text messages, telephone calls, and/or email communications, to individuals who have consented to receive such communications from Publisher and/or each Sub-Publisher. For the purpose of this Section, all references to “Consent” shall refer to the consent required by Applicable Laws (e.g. single opt-in consent, double opt-in consent, etc.). In the event that SSI receives a complaint or demand letter asserting that an individual received a communication sent or distributed in connection with the Services without the Consent of the individual, Publisher will, and will ensure that each applicable Sub-Publisher will, (i) immediately, no later than three (3) business days following notice from SSI, provide SSI with evidence of the Consent received or obtained from the individual(s) (including evidence of each Consent where double opt-in Consent is required); and (ii) fully cooperate with SSI in its attempts to resolve the complaint, including, without limitation, contacting and communicating with the complaining individual(s).Publisher agrees that evidence of Consent shall be in writing and shall contain all required information (e.g. full name, email address, IP address (where permitted), date stamps for each consent, etc.) to demonstrate valid Consent.
1.18 Influencer Marketing. In the event that the Services include or involve the Publisher and/or any Sub-Publisher providing any endorsements, recommendations and/or testimonials for SSI and/or any of its products, services, and/or brands, Publisher acknowledges and agrees, on behalf of Publisher and each Sub-Publisher, that such Services shall be performed in accordance with the following requirements/terms:
- Disclosures should be close to the claims to which they relate;
- Disclosures should be in a font that is easy to read;
- Disclosures should be in a shade or color that stands out against the background;
- For video ads, disclosures should be on the screen long enough to be noticed, read, and understood;
- For audio disclosures, disclosures should be read at a cadence that is easy for consumers to follow and in words consumers can understand;
- For video ads, disclosures should not be placed solely in the description box or bio;
- For video ads, disclosures should be in multiple locations of the video to account for longer videos/content;
- For video ads, disclosures should not be at the end of the video;
- Disclosures that are made in both audio and video are more likely to be noticed by consumers and provide effective disclosures;
- Disclosures should not be hidden or buried in footnotes or viewable through clicking on a disclosure hyperlink;
- Disclosures should be made in the language that the endorsement, testimonial, etc. is made in;
- Disclosures should be clear, conspicuous, and prominent;
- Disclosures should not be misleading or deceptive;
- Disclosures regarding any connections between SSI and the Publisher and/or Sub-Publisher, which might materially affect the weight or credibility of the endorsement, testimonial, etc., need to be made and need to be clearly and conspicuously made;
- For disclosures on social media platforms where space or character usage is limited, shortened or abbreviated disclosures can be used (e.g., starting a tweet with “#Ad:,” “Sponsored,” “Promotion,” or “Paid Ad.”).
- Neither Publisher nor any Sub-Publisher should make any statements about trying or using a product or service unless the Publisher and/or Sub-Publisher have actually tried or used the product or service.
(ii) If a Publisher and/or any Sub-Publisher are managing a network of third party influencers, then the Publisher and/or each Sub-Publisher must have a compliance and monitoring program in place to ensure that the third party influencers are: (a) complying with Applicable Laws, (b) not acting in violation of the terms of this Agreement and/or any Work Order, and (c) that disclosures are being made in compliance with the requirements and terms set forth in this Agreement.
(iii) Each party or person making any endorsement, recommendation, testimonial, and/or other influencer marketing must be at least eighteen (18) years of age or older;
(iv) No endorsements, recommendations, testimonials and/or other influencer marketing will contain or include any deceptive, misleading or inaccurate statements or information regarding or relating to the product or service that is the subject matter of the endorsement, recommendation, testimonial, or other influencer marketing, including, without limitation, the testing and use of such product or service.
(vi) Each party or person making any endorsement, recommendation, testimonial and/or other influencer marketing shall comply with Applicable Laws, including, without limitation, any and all guidelines, regulations, and codes published or promulgated by any government agency or department, including, without limitation, as applicable, the U.S. Federal Trade Commission’s Guidelines on the use of Endorsements and Testimonials in Advertising, as amended from time to time.
1.19 Approval Process. Publisher agrees to submit to SSI for its review and approval, prior to the performance or launch of the Services under each Work Order and at any time following the commencement of the Services under any Work Order, any and all content and/or materials intended to be used, transmitted, played, displayed, and/or distributed by or on behalf of Publisher and/or any Sub-Publisher in connection with the Services, including, without limitation, email templates, blog content, and testimonials/endorsements. SSI’s review and approval of any content and/or materials provided or supplied by Publisher for review does not and will not release or relieve Publisher and/or any Sub-Publisher from compliance with the terms, representations, warranties, obligations, and requirements set forth herein. The requirements of this Section do not and will not apply to SSI Property that is used by Publisher and/or any Sub-Publisher in the original form or format in which it was provided by SSI.
1.20 Seedling a List. Publisher acknowledges and agrees, for itself and for each and every Sub-Publisher engaged by or on behalf of Publisher, that SSI reserves the right to seed any email and/or other communication distribution list (e.g., telephone, SMS/Text message, etc.) and in no event shall SSI be liable or responsible to Publisher and/or any Sub-Publisher for any fees or costs arising out of or related to such seeding by SSI.
1.21 Banner Ad Display. In the event that the Services involve the display of any banner or website advertising copy or content, Publisher agrees, on behalf of itself and each and every Sub-Publisher, as follows:
- the banner or website advertising copy or content shall be prominently displayed on each and every applicable website(s) utilized by Publisher and/or any Sub-Publisher in the performance of the Services;
- all banner or website advertising copy or content shall strictly comply with all requirements regarding size, placement and content, as such requirements are set forth in a Work Order; and
- Except with the prior express written consent of SSI, which consent shall be granted, denied, withheld, conditioned, or delayed in SSI’s sole discretion, Publisher agrees that it will not, and it will not permit or allow any Sub-Publisher to, make any changes or modifications to any website(s) used in connection with the performance of the Services, if such changes or modifications: (a) materially change the target audience for the advertising copy or content, (b) affect the size or placement of any advertising copy or content, or (c) would cause Publisher and/or any Sub-Publisher to be in breach or violation of any term, representation, warranty, obligation, or requirement set forth herein.
1.22 No Manipulation of Links. Publisher agrees, on behalf of Publisher and each Sub-Publisher, that neither Publisher nor any Sub-Publisher will manipulate, modify, or alter any links provided by SSI for use in connection with the Services.
1.23 Responsibility for Marketing Websites. Publisher is solely responsible for, and SSI hereby expressly disclaims all liability for, the development, operation, and/or maintenance of, and for all costs associated with, Publisher’s website(s) and any content thereon (excluding any SSI Property). Publisher shall ensure that neither Publisher’s website(s) nor any website of or for any Sub-Publisher, shall, in any way, copy or resemble the look and feel of, or create the impression that, it is the website of, or a part of a website of, an SSI website(s) or any website(s) of or for any client of SSI.
1.24 Mobile Advertising. For advertisements or offers in connection with the Services that are to be distributed on wireless or mobile devices (e.g., cell phones, tablets, etc.), Publisher hereby expressly agrees, on behalf of Publisher and each Sub-Publisher, as follows:
- The Services and the activities of Publisher and each Sub-Publisher shall comply with Applicable Laws regarding marketing to wireless devices;
- The Services and the activities of Publisher and each Sub-Publisher shall comply with all rules, terms, and policies of the wireless service provider and the maker(s) of the wireless device and operating system running on such device;
- The Services and the activities of the Publisher and each Sub-Publisher shall not install any software, cookies, or applications on the device(s) of users without the express affirmative consent of the user; and
- Publisher and each Sub-Publisher shall provide such data and information as may be requested by SSI from time to time.
- Representations and Warranties. Publisher represents, warrants, and covenants, on behalf of Publisher, and each and every Sub-Publisher, that:
(i) the Services will be performed in a professional and workmanlike manner and in accordance with: (a) all applicable international, national, provincial, federal, state, and/or local laws, codes, and regulations, including, without limitation, any laws, codes, and/or regulations pertaining to data security/privacy, cookies or similar technology, personal information, telemarketing, electronic communications, commercial emails, competition, online marketing and/or advertising, consent and opt-out requirements, and the CAN-SPAM Act (as applicable) (“Applicable Laws”); (b) all generally accepted professional industry standards and practices applicable to the Services and Publisher’s and SSI’s respective industries; and (c) the terms of this Agreement and each Work Order.
(ii) all individuals sourced in connection with the Services have agreed to receive emails and/or other communications from Publisher and/or each Sub-Publisher, of the type and nature intended to be transmitted or distributed by or on behalf of Publisher and/or each Sub-Publisher in connection with the Services.
(iii) all rights, licenses, permits and consents necessary to comply with this Agreement, and to perform any obligations hereunder, are and will be properly obtained and maintained throughout the Term (as defined herein).
(iv) the Services, all Work Product, and all content or material provided or used by or on behalf of Publisher and/or any Sub-Publisher in connection with the Services (excluding any SSI Property) do not and will not infringe, misappropriate, or otherwise violate the intellectual property, proprietary, and/or privacy right(s) of any third party or third parties.
(v) the website(s) (including third party websites) used by Publisher and/or the Sub-Publishers in connection with the Services do not, and will not, advertise, market and/or promote, and/or otherwise contain or include, any illegal, obscene, pornographic, violent, abusive, harassing, defamatory, and/or libelous content, material, and/or information, and do not and will not introduce or distribute any viruses, worms, harmful code, and/or Trojan horses.
(vi) the performance of the Services do not, and will not, cause a breach of the terms of any other agreement entered into by Publisher and/or any Sub-Publisher.
(vii) the execution and delivery of this Agreement have been duly authorized by all requisite corporate action.
(ix) if the Services involve a co-registration or co-sponsorship program, campaign, or service, (1) said program, campaign, or service shall comply with Applicable Laws, (2) individuals shall receive adequate disclosures and notices regarding the services or offers provided through SSI, including, without limitation, the sharing and use of personal information, and (3) the individuals have expressly consented or agreed to receive, access, or participate in the services or offers offered by or through SSI.
(x) Neither Publisher nor any Sub-Publisher is currently under any order or investigation by any international, provincial, national, federal, state, and/or local government, regulatory agency or department, or law enforcement organization or agency and Publisher will provide SSI with immediate written notice in the event that Publisher and/or any Sub-Publisher becomes subject to any such order or investigation.
- Confidentiality. Except as permitted in this Section, each party agrees not to disclose any confidential information provided or supplied by one party to the other party in connection with this Agreement to any third party without the prior express written consent of the disclosing party. The term “Confidential Information” shall include, without limitation, all information (oral and/or written) and documentation (a) marked or identified as being confidential and (b) that a reasonable person should identify as being of a confidential nature. Receiving party will only disclose Confidential Information to those of its employees, Publishers, and/or agents who have a need to know and use the Confidential Information and who have been instructed on the restrictions and obligations with respects to Confidential Information. Upon termination of this Agreement, receiving party shall return and/or delete and erase all Confidential Information, including all originals, copies, and derivative works created therefrom, in whatever form or format. The term of confidentiality shall continue during the Term and for a period of one (1) year thereafter.
- Payment Terms.
4.1 The fees for the Services shall be set forth in each Work Order. All fees and expenses are exclusive of any tax, including, without limitation, use, sales, and/or value-added tax. If SSI is required to reimburse Publisher for any tax, Publisher will separately invoice SSI, however, the failure to invoice SSI for tax when due shall relieve and release SSI from any responsibility for such tax payment. Unless otherwise set forth in a Work Order, Publisher shall invoice SSI on a monthly basis. All undisputed invoices shall be paid within sixty (60) days following the date SSI receives the applicable undisputed invoice.
4.2 In the event SSI rejects any Action (as defined below) sourced in connection with the Services or rejects an individual sourced through the Services prior to the individual registering an Action, Publisher will, in SSI’s sole discretion, either (1) replace, at no cost to SSI, the rejected Action(s) or sourced individual(s), or (2), in SSI’s sole discretion, provide a refund or a credit to SSI in the amount of the fees paid by SSI to Publisher for the rejected Action(s) or sourced individual(s). SSI’s acceptance of and/or payment for an Action(s) or sourced individual(s) does not and will not limit, restrict, or prohibit SSI from subsequently rejecting the Action(s) or sourced individual. SSI may reject any Action for any reason, including, without limitation, speeding, fraud, duplicates, the creation of additional Actions through Fraudulent traffic generation, impression spam, illegal activity, a violation of SSI’s terms and conditions, or any other action or conduct of the sourced individual and/or the Publisher and/or any Sub-Publisher(s) deemed unacceptable by SSI and/or SSI’s client(s). The term “Action” includes, without limitation: (1) a survey complete, (2) registration for a panel or community, and (3) the submission or delivery of any action, deliverable, and/or lead by Publisher and/or any Sub-Publisher in accordance with the terms of this Agreement and the applicable Work Order(s).
4.3 SSI may in its sole discretion modify or alter the fees for the Services under any Work Order, at any time, upon providing five (5) days prior written notice. In the event that Publisher refuses to accept or rejects the modified or alter fees for the Services under any Work Order, SSI may terminate the Work Order immediately and Publisher shall immediately cease performing the Services under the terminated Work Order and SSI shall pay Publisher for all Services performed under the terminated Work Order up to the effective date of termination for the Work Order.
4.4. SSI hereby reserves the right to withhold, and refuse to pay, any compensation for any fraudulent leads, conversions, or completed actions, including, without limitation, multiple leads or conversations from the same individual, entity, or IP address, or leads, conversions or other completed activity from employees, agents, and/or representatives from or of Publisher and/or any Sub-Publisher, and/or any of its or their parents, subsidiaries, and/or affiliates.
- Term; Termination; Suspension.
5.1 The term of this Agreement shall commence on the Effective Date and shall continue until terminated as set forth herein (the “Term”). Either party may, upon five (5) business days prior written notice, terminate this Agreement and/or any Work Order in the event of a breach of a material term or obligation of this Agreement and/or any Work Order by the other party, provided that such breach is not cured or otherwise remedied within the five (5) business day period. SSI may terminate this Agreement and/or any Work Order with or without cause, for any reason or no reason, upon ten (10) calendar days’ prior written notice to Publisher. The foregoing rights of termination shall be in addition to any and all other rights and remedies available to the terminating party.
5.2 Upon the termination or expiration of this Agreement and/or each Work Order, all licenses shall immediately cease and terminate, Publisher will cease using all SSI Property, Publisher will deliver all Work Product to SSI (regardless of the state or stage of completion), and each party will comply with its obligations to return and/or delete and/or erase Confidential Information. The terms and provisions of this Agreement and/or a Work Order that by their scope and nature should survive the expiration or termination of this Agreement and/or a Work Order do and will so survive.
5.3 SSI may, upon providing written notice to Publisher, suspend performance of the Services under any Work Order or all Work Orders, for any reason or no reason, with or without cause.
- Indemnification; Limitations on Liability.
6.1 Indemnification. Publisher will indemnify, defend, and hold harmless SSI, its parents, subsidiaries, and affiliates and each of their respective members, managers, shareholders, directors, officers, employees and agents from and against any and all claims, demands, damages, injuries, liabilities, losses, actions, proceedings, awards, fines, judgments, penalties, and costs and expenses of any kind, including, without limitation, reasonable attorneys’ fees and court costs, arising out of, related to, or caused by, directly or indirectly: (i) the breach or other violation of this Agreement by Publisher, any Sub-Publisher, and/or any of their respective employees, agents, representatives, and/or subcontractors; (ii) the negligent acts or omissions of, or willful misconduct by, Publisher, any Sub-Publisher, and/or any of their respective employees, agents, representatives, and/or subcontractors; (iii) any violation of Applicable Laws by Publisher, any Sub-Publisher, and/or any of their respective employees, agents, representatives, and/or subcontractors; and/or (iv) any reward, incentive, and/or sweepstakes program operated or conducted by or on behalf of Publisher and/or Sub-Publisher.
6.2 Limitations on Liability. SSI IS NOT LIABLE OR RESPONSIBLE TO PUBLISHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, AND LOST BUSINESS) REGARDLESS OF WHETHER EITHER PARTY IS INFORMED OF THE POSSIBILITY THAT THE SAME MAY EXIST. SSI’S TOTAL AGGREGATE LIABILITY TO PUBLISHER SHALL BE LIMITED TO THE AMOUNT OF ANY FEES RECEIVED BY PUBLISHER FROM SSI IN CONNECTION WITH THE WORK ORDER FOR WHICH LIABILITY FIRST AROSE.
- Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the subject matter covered herein, and cancels, replaces and supersedes any other terms and agreements between the parties with regard to the subject matter covered herein, whether prior or contemporaneous, written or oral. This Agreement may be modified only in writing, signed by an authorized representative of each party. Publisher will not assign or transfer this Agreement, in whole or in part, without the prior express written consent of SSI. This Agreement shall be binding upon the parties, their successors, and permitted assigns or transferees. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, USA, without regard to any portion of any choice of law principles (whether those of the state of New York USA, or any other jurisdiction) that might provide for the application of a different jurisdiction’s law. All claims or disputes arising in connection with this Agreement shall be subject to the exclusive jurisdiction and venue of the state or Federal courts located in New York County, New York USA. Failure by either party, at any time, to enforce any obligation or breach by the other, shall not constitute a waiver of the particular breach or any subsequent breach or of either party’s rights or remedies hereunder. SSI and Publisher are independent contracting parties and nothing herein shall be deemed to make either party the agent or legal representative of the other or shall give either party the authority to act for, or to bind, the other party in any respect. Except as provided herein, neither party will: (i) use the name(s), trademark(s), logo(s) or other identifying mark(s) of the other party, in any sales, advertising, marketing, promotional, or publicity activities or materials; or (ii) issue any press release(s), interview(s) or make any other public statement(s) regarding this Agreement and/or the parties’ business relationship; without the prior express written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or denied. Each Party shall be excused for failures and delays in performance caused by war, civil war, riots or insurrections, laws, proclamations, ordinances or regulations of any federal, state, or local government; or strikes, floods, fires, explosions, or other circumstance beyond the reasonable control and without the fault of such Party. The parties hereby expressly agree that this Agreement is prepared in the English language and that the Parties hereby expressly waive any legal requirement for this Agreement to be drafted in any other language and any translation of this Agreement is unofficial and for convenience purposes only.