Contractor Partner Terms of service.
Pay Per Activity Terms
These Pay Per Activity Terms (“Terms”), together with the terms set forth on any Insertion Order, Sales Agreement, or Contract that contains a reference to these Terms (“IO”), constitute a legally binding and enforceable services agreement (the “Agreement”) by and between the Contractor and Airo Marketing, Inc DBA Contractor Appointments (“Airo”) as identified on the IO. These Terms shall be deemed incorporated by reference into the IO; provided, however, that if any provision of the IO conflicts with any provision of these Terms, the provision of the IO shall prevail to the extent of the conflict. For purposes of the Agreement, Contractor and Airo shall be individually referred to as a “Party” or collectively referred to as the “Parties.” Contractor and Airo hereby acknowledge and agree as follows:
1. Services. Contractor agrees to accept and pay for, and Airo agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Airo shall undertake marketing campaigns on behalf of Contractor (each a “Campaign”) whereby Airo and/or Airo’s third-party publishing partners (“Publishers”) will distribute Contractor’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mails, graphic files and similar online media (collectively, “Contractor Creative”) and/or, where applicable and permitted in the applicable IO, Airo Creative (as defined below). In connection with the Campaigns, Airo and/or its Publishers shall generate sales, leads, applications, registrations, installations or other consumer actions, as further defined in the IO (collectively, “Leads”) and/or live telephone calls and/or transfers (collectively, “Calls,” and together with the Leads, “Actions”).
2. Creative. Airo and/or its Publishers shall assist in the development of Creative. The Parties understand and agree that, as between Airo and Contractor, Airo is the sole owner and/or licensee of any and all intellectual property rights associated with the Airo Creative. Notwithstanding the foregoing, Airo and/or the applicable Publisher(s) shall have sole discretion with respect to the creation of the “subject” and “from” lines used in their e-mailing of any Creative. Airo reserves the right, in its sole discretion and without liability, to: (a) change any of its Creative specifications at any time; and (b) reject, omit, exclude or terminate any Creative for any reason at any time, with e-mail notice to the Contractor, whether or not such Creative was previously acknowledged, accepted or published by Airo. Such reasons for rejection, omission or exclusion of Creative include, but are not limited to, where Airo deems, in its sole discretion, that the Creative, including the applicable products and/or services promoted by such Creative (“Contractor Products”), and any website linked to from such Creative, is/are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Airo and/or any Publisher.
3. Placement. The applicable IO may set forth the particular place(s) where Creative may appear and/or be distributed. Contractor agrees that in a case where no points of placement or distributions are set forth in the applicable IO, the Creative may appear at any point of placement and/or distribution that Airo and/or the applicable Publisher(s) may determine, in their respective sole discretion.
4. TCPA Compliance. Where Contractor intends to conduct any telemarketing in connection with the Leads generated hereunder, either: (a) the Parties must indicate that the subject Leads will be “TCPA Compliant” Leads as set forth in the IO; or (b) Contractor shall ensure that any and all Contractor Creative contains the requisite disclosures, language and calls to action necessary to obtain each applicable Lead’s “prior express written consent” to receive commercial telephone calls (including robocalls, pre-recorded calls, text messages and/or autodialed calls to mobile telephone numbers) and other marketing communications from Contractor. For purposes of the Agreement, the term “prior express written consent” shall have the same meaning set forth in the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the “TCPA”). Contractor further represents and warrants that it will comply with all record keeping requirements, call hour restrictions, disconnect requirements, prohibitions against contacting facilities and telephonic devices of certain classifications (e.g. mobile and telefax numbers), caller identification, live operator requirements and any and all other provisions of the TCPA and other applicable state and federal laws.
5. Payments. The rates for Actions shall be set forth in the applicable IO(s). Airo will invoice the Contractor daily, weekly, or monthly. Unless otherwise set forth in the applicable IO, payment will be due to Airo within fifteen (15) days of the date appearing on each invoice. If payment is not made in a timely manner, Airo may, at its option, immediately terminate the Agreement and/or any applicable IO. Interest will accrue on any past due amounts at the rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law. In addition, Contractor shall be liable to Airo for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Contractor agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Airo pursuant to Chapter 57 of the Laws of 2008 amending the Minnesota State Tax Law.
6. Valid Actions/Unaccepted Leads. Airo shall only bill Contractor for valid Actions delivered by Airo and/or Airo’s Publishers to Contractor (“Valid Actions”); provided, however, that, where the applicable Action is a Lead, no prospective Lead shall be considered a Valid Action where: (a) Contractor rejects the Lead within four (4) days of its receipt thereof; and/or (b) Airo determines, in its sole and reasonable discretion, that such Lead is not a Valid Lead. For purposes of the Agreement, a “Valid Lead” means an individual person that: (i) is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person; and (ii) has submitted information that meets all of Contractor’s criteria/required data fields, as set forth in the applicable IO. Any and all Leads that are not considered Valid Actions shall be deemed “Unaccepted Leads.” The Unaccepted Leads shall be deemed the sole and exclusive property and Confidential Information (as defined below) of Airo and Contractor shall have no rights in or to such Leads (including the data contained therein). Without limiting the generality of the confidentiality obligations set forth herein, Contractor agrees that it: (A) will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Leads to/with any third-party; (B) will not use the information contained in the Unaccepted Leads on its own behalf in any manner not expressly authorized by Airo; (C) will not use the information contained in the Unaccepted Leads to create any interactive on-line, CD-ROM or other derivative product; (D) will not publicly display the information contained in the Unaccepted Leads on the Internet; and (E) will notify Airo as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Leads and provide reasonable assistance to Airo in the investigation and prosecution of any such unauthorized use or disclosure. Where the applicable Action is a Call, no prospective Call shall be considered a Valid Call where Airo determines, in its sole and reasonable discretion, that such Call is not a Valid Call. For purposes of the Agreement, a “Valid Call” shall mean a Call that is not either a Duplicate Call or Fraudulent Call (as those terms are defined below). For purposes of the Agreement, a “Duplicate Call” means a Call from the same consumer or business within the time period identified in the IO, whether or not the call came through the same caller ID. For purposes of the Agreement, a “Fraudulent Call” means a Call submitted by Airo to Contractor that is the product of incentivized marketing, fraud or manipulation of information on the part of Airo or any of its Publishers.
7. Term/Termination. The Agreement shall commence on the Effective Date and continue until terminated as permitted herein. Either Party may terminate the Agreement and/or any IO at any time, upon two (2) business days’ prior written notice. Either Party may terminate the Agreement and/or any IO upon twenty-four (24) hours’ prior written notice, where the other Party materially breaches the Agreement. Upon termination or expiration of the Agreement for any reason: (a) any and all licenses and rights granted to either Party in connection with the Agreement shall immediately cease and terminate; and (b) any and all Confidential Information or proprietary information of either Party that is in the other Party’s possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
8. Disclaimer of Warranties. THE SERVICES, Airo CREATIVE, ACTIONS AND ACTION TRACKING CODES PROVIDED BY Airo UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO(S) ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, Airo MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AIRO DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE SERVICES, AIRO CREATIVE, ACTIONS AND/OR ACTION TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. AIRO HAS NO LIABILITY, WHATSOEVER, TO CONTRACTOR OR ANY THIRD-PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND AIRO DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. AIRO HAS NO LIABILITY FOR CCONTRACTOR’S USE OF, OR INABILITY TO USE, THE APPLICABLE ACTIONS AND AIRO DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT CONTRACTOR’S USE OF THE SERVICES, AIRO CREATIVE AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. AIRO MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES.
9. Limitation of Liability. IN NO EVENT SHALL AIRO BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF AIRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AIRO WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND AIRO’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, Airo’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO AIRO BY Contractor PURSUANT TO THE AGREEMENT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL Airo BE RESPONSIBLE OR LIABLE FOR THE ACTS AND/OR OMISSIONS OF ANY PUBLISHER UNDER ANY CIRCUMSTANCES.
14. Indemnification. Contractor shall irrevocably defend, indemnify and hold Airo, its employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving: (a) Contractor’s violation of any Applicable Law, breach of the Agreement or breach of any representation or warranty contained therein; (b) the Creative, Contractor Products and/or Contractor websites; (c) any improper or unauthorized use of the Actions; and/or (d) any claim that Airo is obligated to pay any taxes in connection with Contractor’s participation hereunder. Airo shall irrevocably defend, indemnify and hold Contractor, its employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys’ fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving Airo’s violation of any Applicable Law, breach of the Agreement or breach of any representation or warranty contained therein.
11. Confidentiality. For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (a) a Party’s business plans, strategies, know-how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the material terms of the Agreement and/or any associated IOs; (c) with respect to Airo, the Unaccepted Leads and suppression lists; and (d) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that: (A) is generally available to or known to the public through no wrongful act of the Receiving Party; (B) was independently developed by the Receiving Party without the use of Confidential Information; or (C) was disclosed to the Receiving Party by a third-party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond.
12. Audit. Contractor agrees that, at all times during the term of the Agreement, and for a period of six (6) months thereafter (the “Audit Period”), it shall maintain accurate books and records relating to Contractor’s use of the Actions as authorized and contemplated hereunder, as well as Contractor’s compliance with Applicable Law and the terms of the Agreement (collectively, the “Audit Items”). Contractor agrees that Airo, or any designee of Airo that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the Audit Period to reasonably examine, inspect, audit and review the Audit Items during normal business hours upon written notice to Contractor at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at Airo’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to the Audit Items. Notwithstanding the foregoing, if Airo uncovers any material misconduct associated with Contractor’s use of the Leads and/or Unaccepted Leads, compliance with Applicable Law and/or compliance with the terms of the Agreement, then the audit shall be at the sole cost and expense of Contractor.
13. Non-Circumvention. Contractor recognizes that Airo has proprietary relationships with its Publishers. Contractor agrees not to circumvent Airo’s relationship with such Publishers, or otherwise solicit, purchase, contract for or obtain services from any Publisher that is known, or should reasonably be known, by Contractor to have such a relationship with Airo, during the term of the Agreement or at any point following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Contractor can show that any such Publisher already provided such services to Contractor prior to the date hereof, then Contractor shall not be prohibited from continuing such relationship. Contractor agrees that monetary damages for its breach, or threatened breach, of this Section 17 will not be adequate and that Airo shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Contractor in the amount equal to one hundred percent (100%) of the fees paid by Contractor to the subject Publishers(s) for the prior twelve (12) month period; and/or (c) any and all other remedies available to Airo at law or in equity.
(a) Assignment. Neither Party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other Party, and any attempt to do so shall be null and void; provided, however, that either Party may assign the Agreement, any IO or any portion hereof/thereof, to: (i) an acquirer of all or substantially all of such Party’s equity, business or assets; (ii) a successor in interest whether by merger, reorganization or otherwise; or (iii) any entity controlling or under common control with such Party.
(b) Choice of Law; Venue; Attorneys’ Fees. The Agreement shall be construed in accordance with and governed by the laws of the State of Minnesota. In the event that any suit, action or other legal proceeding shall be instituted against either Party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the District of Minnesota or any Minnesota State Court of competent jurisdiction, located in Washington County, and further agrees to comply with all the requirements necessary to give such court jurisdiction. The prevailing Party in any action brought for the enforcement or interpretation of the Agreement shall be entitled to receive, from the losing Party, without limitation, reasonable attorneys’ fees and costs of litigation, in addition to any other relief to which it may be entitled.
(c) Entire Agreement; Modification. These Terms, and any and all IO(s) and Exhibits hereto, represents the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. The Agreement may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with any IO is in conflict or inconsistent with these Terms, the IO shall take precedence.
(d) Non-Waiver; Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the Parties, and the remaining provisions of the Agreement will remain in full force and effect.
(e) Relationship of the Parties. The Parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the Parties. Neither Party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Airo acts as a limited agent of Contractor for the sole purpose of performing the Services set forth in the IO(s).
(f) Counterparts; Drafting; Headings. The Agreement may be executed in two (2) counterparts, each of which shall be an original and both of which shall together constitute one Agreement. Facsimile and digital signatures shall be acceptable as originals and binding on the Parties. Each Party executing the Agreement agrees that it has fully participated in the drafting of the Agreement and that no Party shall be deemed to be the drafting Party of the Agreement. Section headings used herein are for convenience only, are not part of the Agreement, and shall not be used in construing the Agreement.
(g) Force Majeure. Other than for payment obligations arising hereunder, neither Party will be liable for, or will be considered to be in breach of the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence (each, a “Force Majeure Event”). If any Force Majeure Event occurs (which shall include, without limitation, acts of God, telecommunications, Internet or network failure, results of vandalism or computer hacking, fire, explosion, storm or other natural occurrences, any conflicting order, direction, action or request of any applicable governmental body (including, without limitation, state and local governments) or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, wars, strikes or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such Force Majeure Event. Notwithstanding the foregoing, the Parties’ obligations to one another shall be excused and/or postponed during and only for the duration of the applicable Force Majeure Event and shall resume as soon as practicable after the Force Majeure Event has ended.
(h) No Third-Party Beneficiaries. Nothing in the Agreement is intended or shall be construed to give any person other than the Parties hereto, their respective successors and assigns, any legal or equitable right, remedy or claim under or with respect to the Agreement or any provision contained herein.
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