Terms & Conditions

RECITALS

WHEREAS, Affiliate owns and/or controls the rights to certain online marketing campaigns, and/or supplies, finances, and/or manages the marketing campaigns of its own clients or affiliates engaged in the business of marketing, selling, and distributing various products (the “Affiliate’s Business”). WHEREAS, Company is a consultant in the business of providing individuals, business, and/or other organizations in the Affiliate’s industry with the ability to manage and account for the debit and/or credit facilities (“Media Cards”) used to purchase online marketing media (“Media”) (collectively the “Services”). WHEREAS, Affiliate wishes to retain Affiliate to provide the Services pursuant to the terms and conditions of this Agreement.

AGREEMENT

NOW THEREFORE, in consideration of the promises set forth above and the mutual promises, agreements and conditions stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereby agree to the following:

  • 1. Incorporation of Recitals. The foregoing Recitals are incorporated by this reference as though fully set forth herein.
  • 2. Definitions. Those terms that have been defined through this Agreement shall bear the meanings ascribed to them, or otherwise, shall have the meanings identified below:
  • 2.1. “Affiliate,” as used herein, shall mean , a _ , and all of its agents, assigns, affiliates, predecessors, successors, subsidiaries, parents, or any other Person that receives any benefit from the Services.
  • 2.2. “Agreement,” as used herein, shall mean this Media Transaction Services Agreement, and all exhibits hereto, and shall include any subsequent amendments or modifications to this Agreement.
  • 2.3. “Applicable Rules and Regulations,” as used herein, shall mean the rules, regulations, policies and/or procedures of any federal or state department or agency having jurisdiction over the activities, conduct, actions, or representations made by Company or Affiliate.
  • 2.4. “Cash Balance,” as used herein, shall mean the total amount of available funds existing in Affiliate’s Designated Account.
  • 2.5. “Company,” as used herein, shall mean Response Media Group, a Puerto Rico Limited Liability Corporation.
  • 2.6. “Designated Account(s),” as used herein, shall mean the bank account or bank accounts designated by Company into which Affiliate is to deposit the funds that Affiliate intends to utilize for Affiliate’s Business. Company shall have the discretion to change the Designated Account, and transfer any funds belonging to Affiliate into any newly Designated Account, or Accounts, established by Company.
  • 2.7. “Monthly Fee Average,” as used herein, shall be equal to the collective Subscription and Service Fees earned by Company for provision of the Services to Affiliate, divided by the total number of months that Company has provided the Services to Affiliate.
  • 2.8. “Person,” as used herein, shall mean any individual, business, and/or other organization or entity.
  • 2.9. “Reserve,” as used herein, shall mean the minimum Cash Balance that Company, in its sole discretion, will require Affiliate to maintain in its Designated Accounts, which at no point in time will exceed the amount of ten percent (10%) of the average Gross Media Purchase in any given month.
  • 3. Scope of Services and Authority. Company shall perform the actions necessary to complete the Services in a timely and professional manner consistent with industry standards, and at a location, place, and time which Company deems appropriate. Company will maintain Designated Account(s) into which Affiliate intends to make a series of deposits (“Gross Deposit(s)”). Company will issue Media Card(s), in the name, and with those credit limits requested by, Affiliate, subject to Company’s approval. Affiliate will utilize the Media Card(s) for the purpose of purchasing Media (“Gross Media Purchases”). At no time shall Affiliate’s Gross Media Purchases in any given day exceed its Cash Balance (“Daily Purchase Limit”). If at any time Affiliate’s Gross Media Purchases in any given day exceeds its Cash Balance, Company shall have the absolute right and discretion to: (i) revoke and freeze Affiliate’s ability to utilize the Media Card to purchase Media, and/or (ii) reverse or challenge any of the transactions which caused the Gross Media Purchases to exceed the Cash Balance in the Designated Account(s). Company may also, in its sole discretion, establish a Reserve, which shall be excluded from the Cash Balance for purposes of determining the Daily Purchase Limit.
  • 3.1. Payment of Media Card Balance. Company shall have the right and sole discretion to pay any balances owed on the Media Card(s) used by Affiliate to purchase Media, at any time, from the funds deposited by Affiliate into the Designated Account(s). Company shall be under no obligation to provide Affiliate with advance notice of the payment being made.
  • 3.2. Transaction Accounting. Company shall provide Affiliate with access to a digital spreadsheet which will provide Affiliate with a daily accounting of each purchase of Media made, segregated by the Media Card utilized for each purchase (“Daily Transaction Report”). Affiliate will be provided with a unique user name and password which will provide Affiliate with access to the Daily Transaction Report.
  • 3.3. Relationships of the Parties. Company’s relationship with Affiliate will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Furthermore, Company is not, and shall not be regarded as, a fiduciary of Affiliate, and will not assume the role of any capacity in which a fiduciary duty is owed. Company provides Affiliate with a service which is intended to provide Affiliate with more readily accessible information pertaining to the Affiliate’s use and purchase of Media. Company will not manage the marketing plans or promotions which Affiliate intends to employ, nor shall Company evaluate the viability of any such plans. Affiliate hereby acknowledges and agrees that Company’s relationship with Affiliate is non-exclusive, and that Company may have provided, is presently providing, or will in the future provide services to other individuals, business, and/or other entities in Affiliate’s, or outside of Affiliate’s, industry. Company will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Company performance of services and receipt of fees under this Agreement. Because Company is an independent contractor, Affiliate will not withhold or make payments for any taxes.
  • 4. Compensation.
  • 4.1. Subscription Fee. Affiliate will pay to the Company a subscription fee (“Subscription Fee”) that is outlined in the Insertion Order, which shall be owed by Affiliate on the first of every month in which Affiliate receives the Services. Affiliate hereby consents to Company’s withdrawal of the Subscription Fee from the Designated Account(s) immediately upon the Subscription Fee being due pursuant to this Paragraph 4.
  • 4.2. Reimbursement of Expenses. Affiliate will also reimburse Company for all reasonable and customary expenses, including but not limited to travel, lodging and other business-related expenses, provided Company obtains Affiliates prior written consent (“Approved Expenses”). At Affiliate’s request, Company will furnish Affiliate with copies of receipts and other customary documentation for any expenses for which Company requests reimbursement hereunder. Affiliate hereby consents to Company’s withdrawal of the Approved Expenses from the Designated Account(s) immediately upon Approved Expenses being due pursuant to this Paragraph 4.
  • 5. Assignment of Gross Deposits. In order to secure the (1) payment of all amounts due by Affiliate to Company under this Agreements and (2) Affiliate’s performance of the terms and conditions of this Agreement, Affiliate hereby (i) assigns all right, title and interest to the Gross Deposits, and any other funds deposited into the Designated Account(s), to Company for the duration of this Agreement and after the termination of this Agreement so long as there are outstanding amounts owing by Affiliate to Company under this Agreement; and (ii) grants to Company a security interest in all of Company’s interest in the Designated Account(s) and Gross Deposits, and permits Company to file, on Affiliate behalf a UCC-1 Financing Statement to secure Company’s interest as described herein..
  • 6. Affiliate's Representations and Warranties. Affiliate hereby represents and warrants the following, upon which Affiliate acknowledges and understand that Company is relying upon: (i) Affiliate has filed all requisite forms and is in good standing with that state and such other states that it transacts business in; (ii) Affiliate has all requisite power, authority, and capacity to enter into Agreement; (iii) As of the date hereof, Affiliate is not in default under any agreement which might cause Affiliate not to perform or otherwise default pursuant to this Agreement; (iv) Affiliate's accounts, accounts receivable, goods (including inventory), are not encumbered by any liens, security interests or other attachments of any kind; (iv) Affiliate has not sold, granted a security interest in, or otherwise assigned any of its assets, including any part of the funds utilized by Affiliate to fund the Designated Account(s); (v) Affiliate’s performance under this Agreement and Company’s receipt of the compensation identified in Paragraph 4 of this Agreement does not and shall not violate: (a) any contractual obligation Affiliate may have; (b) any agreements, duties, obligations, or restrictions which Affiliate may have with any other Person; and (c) any federal or state laws or regulations applicable to Affiliate or its actions taken in furtherance of this Agreement or Affiliate’s Business; and (vi) Affiliate agrees to comply with all Applicable Rules and Regulations, which are incorporated to this Agreement by reference.
  • 7. Term and Termination.
  • 7.1. Term. Unless terminated earlier in accordance with the terms of this Agreement, this Agreement will commence on the Effective Date and shall continue for successive thirty (30) day terms, which shall be automatically renewed unless one Party informs the other in writing that it wishes to terminate this Agreement.
  • 7.2. Termination. This Agreement may be immediately terminated by Company at any time if: (1) Affiliate fails to abide by the duties, terms, conditions, representations, or warranties of this Agreement; (2) Affiliate’s representations and warranties as set forth herein are discovered to be false; (3) Affiliate disseminates or improper utilizes Confidential Information; and/or (4) if Affiliate circumvents Company’s business relationships as prohibited in this Agreement.
  • 7.3. Effect of Termination. Upon termination of this Agreement, Company shall return all funds belonging to Affiliate in the Designated Account(s), less: (1) any Service Fees; (2) Approved Expenses incurred by Company; and (3) a reasonable reserve not more than ten percent (10%) of the total amount of Affiliate’s funds in the Designated Account(s). Upon termination, Company shall no longer be obligated to provide any of the Services or abide by any other obligations under this Agreement, however, all rights conferred upon Company by this Agreement, including but not limited to security interests in the Collateral granted herein, shall survive the termination of this Agreement provided that Company is not then in breach of this Agreement, and shall remain in full force and effect until such time as all amounts owed to Company hereunder have been paid.
  • 8. Indemnification. Affiliate shall defend, indemnify and hold harmless Company and its respective employees, agents, representatives, licensees, and assigns from and against any deficiencies, damages, losses and expenses, such as legal expenses (including reasonable attorneys' fees, expenses disbursements), arising from or in connection with: (i) Affiliate’s breach of any the terms of this Agreement; (ii) any representation or warranty made by Affiliate herein; (iii) any act or omission of Affiliate, or any of its agents, employees, representatives or contractors, or arising from or in connection with Affiliate’s Business; (iv) any other dealings between Company and Affiliate. Upon three (3) days' written notice from Company to Affiliate, Affiliate shall defend Company against any of the above identified contingencies at Affiliate's expense by legal counsel selected by Company.
  • 9. Disclaimer of Warranty. Affiliate understands, agrees, and hereby acknowledges, that Company: (i) is not providing marketing or promotion advice with respect to any of the services or products offered by Affiliate; (ii) does not make any representation or warranty with respect to the viability of any marketing or promotion plans employed by Affiliate; (iii) does not make any representation or warranty regarding the Media purchased by Affiliate, or whether the Media purchased will increase the revenues of sales of Affiliate; (iv) that the marketing or promotion plans employed by Affiliate, or the Media purchased by Affiliate is consistent or compliant with the Applicable Rules and Regulations.
  • 10. Limitation of Liability. Affiliate understands, agrees, and hereby acknowledges, that Company shall not be responsible for any damages, claims, losses, judgments, disputes, proceedings lawsuits, liability, or anything of the like, incurred by or directed at Affiliate arising out of or related to this Agreement, or Company performance of this Agreement. Company’s maximum liability to Affiliate for any injuries, damages, claims, losses, expenses, or claimed expenses (including attorney’s fees) arising out of this Agreement, shall be an amount equal to the Monthly Fee Average multiplied by a period of three (3) months.
  • 11. Confidentiality.
  • 11.1. As used herein, “Confidential Information” shall include, without limitation, data, information, accounts, records, agents, vendors, employees, contractors, banking relationships, cost and expense data, marketing and customer data, sales manuals, protocols, management policies and procedures, quality assurance policies and procedures, Company’s policies and manuals, documentation of processes, software, applications, designs, devices, compilations of information, symbols, service marks, logos, customer and vendor lists, business information, marketing programs, plans, and strategies, research and development plans, contracts and licenses, licensing techniques and practices, advertising and promotional materials, financial information, models and strategies, computer software and other computer-related materials, copyrightable material, security controls, including computer system passwords, and other confidential information owned by or used in the business of Company, assigns, parent, subsidiaries or affiliates. In addition to the foregoing, Confidential Information also includes any information which is not generally known to the public, or within the market or trade in which the Company competes, and the physical embodiments of such information in any tangible form, whether written or machine-readable in nature, or any information which is marked or designated as “Confidential.”
  • 11.2. Company views the Confidential Information as essential to the continued operation and success of its business. Affiliate acknowledges that, during the course of performing this Agreement, Affiliate will be privy to Confidential Information, including but not limited to the existence and terms of Company’s relationship with any banks with which Company maintains the Designated Accounts. Affiliate agrees that it will not use for its own purposes, will not disclose to any third party, and will retain in strictest confidence, all Confidential Information during the term of this Agreement, and that after termination of this Agreement Affiliate will use the same degree of care and discretion that Affiliate uses to protect its own Confidential Information. Affiliate will be obligated to maintain the confidentiality of the Confidential Information except to the extent: (a) it is or becomes within the public domain through no act of the disclosing party in breach of this Agreement, or (b) it is required to be disclosed by state or federal law.
  • 11.3. Affiliate agrees and hereby acknowledges that all Confidential Information, whether reduced to writing, maintained on any form of electronic media, or maintained in the mind or memory of Affiliate, and whether compiled by Company or Affiliate, or both, has significant independent economic value to Company from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by Company to maintain the secrecy of such information, that such information is the sole property of Company and that any retention and use of such information by Affiliate during the performance of this Agreement (except in the course of performing its duties and obligations hereunder) or after the termination of this Agreement shall constitute a breach of this Agreement and a misappropriation of Company’s trade secrets.
  • 11.4. Affiliate agrees that it will not at any time, use, directly or indirectly, any Confidential Information, including but not limited to Company’s existing relationship with financial institutions, banks, or any other vender, or the terms and conditions of those relationships, for the benefit of Affiliate to the exclusion of Company, or for the benefit of any Person other than Company, without obtaining Company’s prior written consent. Affiliate further agrees that it, its employees, officers, directors and agents, and its parent, subsidiary and affiliate companies, will not in any manner whatsoever, circumvent or attempt to directly or indirectly circumvent, Company's agreements with the financial institutions that maintain the Designated Accounts, Company’s vendors, Company’s employees, or any other strategic business relationship maintained by Company, for Affiliate’s own benefit or for any other purpose, without obtaining Company’s prior written consent.
  • 12. ALTERNATIVE DISPUTE RESOLUTION. THE PARTIES TO THIS AGREEMENT HEREBY AGREE TO SUBMIT ALL DISPUTES ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT TO FINAL AND BINDING ARBITRATION BEFORE JAMS ADR SERVICES, OR ITS SUCCESSOR, OR ANY OTHER ARBITRATION TRIBUNAL AGREED UPON BY COMPANY AND AFFILIATE, IN ORANGE COUNTY, CALIFORNIA. THE ARBITRATION SHALL BE CONDUCTED PURSUANT TO THE JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES IN EFFECT AT THE TIME OF THE FILING OF THE DEMAND FOR ARBITRATION, BEFORE A SINGLE ARBITRATOR. THE ARBITRATOR SHALL BE A RETIRED JUDGE AND SHALL CONDUCT THE ARBITRATION HEARING AND RENDER HER FINAL DECISION IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. THE ARBITRATOR SHALL HAVE THE DISCRETION TO ORDER THAT THE PREVAILING PARTY BE REIMBURSED FOR THE ARBITRATION FEES INCURRED. AFFILIATE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THE ABOVE AGREEMENT TO ARBITRATE, AND THAT BY ENTERING INTO THIS AGREEMENT, THE PARTIES HERETO, INCLUDING AFFILIATE, ARE WAIVING A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE PARTIES MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY, AND VOLUNTARILY MADE BY EACH PARTY TO THIS AGREEMENT, AND EACH PARTY HEREBY REPRESENTS THAT NO REPRESENTATION OF FACT OR OPINION HAS BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
  • 12.1. Company and Affiliate agree and acknowledge that either Party, in addition to any other rights or remedies which they may possess, shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of this Agreement by either Party, which may be requested from a state or federal court of competent jurisdiction if so required to prevent further or irreparable damage or injury, however, this narrow exception to the parties agreement to arbitrate shall in no way operate to invalidate or otherwise circumvent the agreement to arbitrate the Parties claims as set forth in this Agreement.
  • 13. Miscellaneous Provisions.
  • 13.1. Duty of Cooperation. Affiliate shall, from time to time, at Company's request, and without further consideration, perform such acts and execute and deliver to Company such additional and further instruments, documents, and other considerations, as Company may reasonably request for the more effective consummation of the transactions contemplated hereunder and Company's satisfaction under this Agreement. Company shall be entitled to execute, on Affiliate's behalf, all financing statements, and such other documents necessary in order to protect and renew Company's rights herein and as a secured party.
  • 13.2. Attorney’s Fees. If any legal action, arbitration, or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
  • 13.3. Notices. All reports, communications, requests or notices required or permitted by this Agreement to be given by one party to the other shall be in writing and shall be deemed to be duly given if sent by facsimile, delivered personally, mailed by certified or registered mail, return receipt requested, or sent by overnight mail delivery to the party concerned at its or his address set forth below. Mailed notices shall be deemed to have been given three (3) days after being deposited in the United States mail, or if by overnight mail, on the next working day following the sending thereof, or if by any other means, upon receipt. Either party may change the address to which such notices and communications shall be sent, by written notice to the other party, served in the manner described in this paragraph.
  • 13.4. Remedies. Neither party shall be liable for any consequential or incidental damages claimed or suffered by the other party as a result of or in connection with such party's failure to perform hereunder, nor shall either party be liable for punitive, special or exemplary damages alleged by the other party. Company shall not be liable to Affiliate under any legal or equitable theory for any damages, expenses or losses suffered by Affiliate resulting from the acts of omissions of any third party or by reason of any act, delay or omission outside of its direct control.
  • 13.5. Authority. Any person(s) signing this Agreement represent(s) that such person(s) has full power and authority to bind that person's principal, and that the designated person entering into this Agreement on behalf of the Company or Affiliate have full authority to enter into and perform this Agreement and that entering into this Agreement and the completion of the obligations pursuant to this Agreement, do not violate and Articles of Incorporation, Articles of Organization, Bylaws, Operating Agreement, Partnership Agreement or other document governing the activity of either of the Parties.
  • 13.6. No Assignment. This Agreement and the rights herein are not assignable or transferable by Affiliate without Company prior written consent. Company may transfer its rights and/or obligations under this Agreement provided said transfer is incident to a sale of the majority of Company’s assets, its business, or stock
  • 13.7. No Partnership. This Agreement shall not constitute a partnership or joint venture between the parties hereto.
  • 13.8. Entire Agreement. This Agreement sets forth the entire Agreement among the parties hereto pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, among the parties hereto, and there are no warranties, representations or agreements between the parties hereto in connection with the subject matter hereof except as expressly set forth in this Agreement. Any future oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent writing signed by the party to be charged. No agent, employee, or other representative of any party is empowered to alter any of the terms hereof, unless done in writing and signed by the party, and if a party is a corporation, by an executive officer thereof.
  • 13.9. Advice of Counsel/Interpretation. The Parties to this Agreement hereby confirm and admit that he/she/ it has read and understands the Agreement, and that he/she/ it has been fully advised and represented by independent counsel with respect to this Agreement and all negotiations giving rise to it, and that he/she/ it has fully discussed this Agreement with all of its terms, consequences and ramifications with his/her/ its respective counsel. This Agreement is the result of the negotiations of the Parties, and each has had significant input into the drafting and construction of this Agreement, and thus, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. The Parties understand and agree that this Agreement shall be construed fairly as to all parties and not in favor of or against any of the parties regardless of which party has prepared this Agreement, such that the application of California Civil Code Section 1654, providing “[i]n cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist,” is hereby waived.
  • 13.10. Authority. Any person(s) signing this Agreement represent(s) that such person(s) has full power and authority to bind that person's principal, and that the designated person entering into this Agreement on behalf of the Company or Reseller have full authority to enter into and perform this Agreement and that entering into this Agreement and the completion of the obligations pursuant to this Agreement, do not violate and Articles of Incorporation, Articles of Organization, Bylaws, Operating Agreement, Partnership Agreement or other document governing the activity of either of the Parties.
  • 13.11. Choice of Law/Jurisdiction. This Agreement, when executed by all of the parties hereto, shall bind and inure to the benefit of the parties, their personal representatives, successors and assigns. This Agreement shall be governed by and enforceable and interpreted under the laws of the state of California.
  • 13.12. Severability. Should any provision or portion of this Agreement be held unenforceable or invalid for any reason by a court of competent jurisdiction, the remaining provisions and portions of this Agreement shall be unaffected by such holding and shall remain in full force and effect.
  • 13.13. Waiver. No waiver by any party, whether express or implied, of any provision hereof or of any breach of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach or default of the same or any other term, covenant, or condition, whether pre-existing or subsequent thereto. The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver thereof or of any future breach or subsequent wrongful conduct.
  • 13.14. Headings. Al of the headings used in this Agreement are for convenience and easy reference only and do not define, limit, augment or describe the scope, content, construction or intent of this Agreement or any part hereof.
  • 13.15. Survival. In the event that one or more of the provisions, or portions thereof, of this Agreement is determined to be illegal or unenforceable, the remainder of this Agreement shall not be affected thereby and each remaining provision or portion thereof shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law.
  • 13.16. Execution. This Agreement may be executed in any number of counterparts and/or separate signature pages and by facsimile, each of which shall be considered an original and all of which taken together shall constitute one and the same instrument. This Agreement shall be fully enforceable upon execution of all parties hereto. IN WITNESS WHEREOF, the Parties have executed this Agreement under seal as of the Effective Date.