The following terms and conditions (this "Agreement") is a legal agreement between, on the one hand, DigiVision, Inc., a Berlin corporation doing business as CPALabit ("CPALabit"), and, on the other hand, you and your business entity and, where applicable, your network of affiliates who will be performing the advertising services hereunder (collectively, "PUBLISHER"). PUBLISHER and CPALabit may also be individually referred to herein as a "Party" and collectively as "Parties." If there is any conflict between these Terms and Conditions and the Insertion Order(s), the Insertion Order(s) shall control.
1.) Service: PUBLISHER will display the Advertisement and perform lead generation services described in the attached Insertion Order. "Advertisement" means the advertisement, including any copy including questions and or text ads, graphic, sound, video, programming code and/or other content that comprises the advertisement, as well as the websites to which an advertisement is linked if applicable. CPALabit hereby grants to PUBLISHER during the Contract Period a revocable, non-exclusive, royalty-free, worldwide (except where jurisdiction is limited by the Insertion Order) right and license to use, reproduce, distribute, publicly perform, publicly display and digitally perform such Advertisement and all its constituent parts.
2.) Qualified Lead Definition (Qualified Leads): Qualified Leads are prospects who meet CPALabit's screening criteria as described in the Insertion Order and who provide their complete contact data. PUBLISHER will be paid on a delivered per lead basis defined as when a user agrees through a pre-approved opt-in method to be contacted by CPALabit's advertiser client(s). In the case of any dispute between the parties as to the number of Qualified Leads delivered by PUBLISHER during a specific payment cycle, CPALabit's numbers will control.
3.) Lead Validation Procedure: CPALabit will verify each Qualified Lead delivered by the PUBLISHER. Upon receipt, all Qualified Leads will be checked for data validity (i.e. containing valid data inputs for the fields specified in the Insertion Order) and uniqueness of data (i.e. that the Qualified Leads are not present in CPALabit's database for the designated Advertisement in the past 60 days). CPALabit reserves the right to send an auto-responder to all respondents re-confirming their request for information. Any objections from respondents (about the email, or the offer) will be raised to the PUBLISHER.
4.) Creative Changes: Editing of Creative provided to PUBLISHER by CPALabit or through its offer platform is strictly prohibited, without prior written approval from CPALabit. Creative includes, but is not limited to, text ads, graphic ads, from and subject lines, any copy associated with the advertisement including survey questions and answers. Any changes to Creative, without prior written permission will result in the loss of payment of Leads.
5.) Compliance: CPALabit will actively monitor PUBLISHER activity using a combination of its proprietary software and third party monitoring services. It is the obligation of PUBLISHER to prove to CPALabit that they are not committing fraud. If CPALabit or its advertiser client suspect fraud on the part of PUBLISHER, CPALabit will hold PUBLISHER payment in 'Pending Status' until PUBLISHER has satisfactorily provided evidence that PUBLISHER is not defrauding the system. CPALabit flags accounts upon request of its advertiser client. On its own initiative, CPALabit also flags accounts that: Have click-through rates that are much higher than industry averages and where solid justification is not evident; Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined by our clients; or are suspected to have used fake redirects, automated software, and/or fraud to generate clicks or leads. If PUBLISHER is unable to prove to CPALabit that PUBLISHER is not committing fraud, PUBLISHER will forfeit its entire commission for all programs and PUBLISHER's account will be terminated. CPALabit reserves sole judgment in determining fraud.
6.) Advertising Guidelines: PUBLISHER may, in its complete discretion, reject, cancel or remove at any time any Advertisement from the service for any reason without prior notice to CPALabit. PUBLISHER must notify CPALabit following the rejection, cancellation or removal of any Advertisement from the service within 24 hours.
7.) Term & Target Launch: Term will be one (1) month from the target launch of the initial campaign as noted in the Insertion Order. Agreement may continue thereafter by mutual consent but may be terminated by either party for any reason whatsoever. All legitimate moneys due to PUBLISHER will be paid during the next billing cycle. If PUBLISHER defrauds the system, then payment is revoked as determined solely by CPALabit.
8.) Invoices: PUBLISHER will invoice CPALabit on a weekly basis at the payout rates reflected in the Insertion Order. The invoice will reflect delivery of final Qualified Lead numbers that are based upon numbers reported by CPALabit to PUBLISHER pursuant to the terms of this Agreement.
9.) Payments: CPALabit shall make all payments to PUBLISHER within 7 days of CPALabit's receipt of payment for the Qualified Leads at issue from its advertiser client. PUBLISHER understands and agrees that CPALabit does not extend credit to advertiser clients and that CPALabit is unable to and will not pay PUBLISHER unless and until CPALabit has been paid by the advertiser. All payments made to PUBLISHER do not include, and PUBLISHER shall pay, any sales, use or similar tax associated with such payment. PUBLISHER shall keep, maintain and preserve, for the term of this Agreement and for one (1) year thereafter, accurate records relating to amounts due hereunder (the "Relevant Records"). CPALabit shall have a right at least once per calendar year to audit the Relevant Records of PUBLISHER for the purpose of verifying fulfillment of its payment obligations pursuant to this Agreement. Each audit will be conducted at PUBLISHER'S principal place of business, during the normal business hours, with at least ten (10) business days prior written notice. CPALabit shall pay the fees and expenses of the audit, unless the audit reveals an overpayment of more than ten percent (10%) of all payments due in any consecutive six (6) month period, in which case PUBLISHER shall pay the reasonable fees and expenses of the audit, and shall immediately pay CPALabit all amounts found to be due.
10. CPALabit Representations and Warranties. The execution, delivery, and performance of this Agreement by CPALabit has been duly approved by its board of directors or managing partners/members, and no further corporate action is necessary on the part of CPALabit to consummate the transactions contemplated by this Agreement.
11.) PUBLISHER Representations and Warranties: Publisher represents and warrants that: (1) the recipients of all email addresses used by PUBLISHER in connection with this Agreement have manifested affirmative consent to receive commercial emails from PUBLISHER and none of the email addresses were obtained through email harvesting or dictionary attacks; (2) PUBLISHER will not fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by CPALabit, such as pre-population of forms or mechanisms not approved by CPALabit); (3) PUBLISHER will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from CPALabit that allows CPALabit to measure ad performance and provide its services (4) all of PUBLISHER's efforts associated with this Agreement comply with the laws of the Gemany, and any other laws of any other jurisdictions which are applicable to PUBLISHER, consistent with section 12, below; (5) PUBLISHER will not engage in or promote any illegal activities of any kind in association with this Agreement, consistent with section 12, below; and (6), if PUBLISHER IS A NETWORK, Publisher will ensure all affiliates and sub-publishers will comply in every respect with this Agreement, including these representations and warranties.
12.) Legal Compliance: 5. Compliance. CPALabit has a zero-tolerance policy toward violations of the law, in particular the CAN-SPAM Act of 2003 ("CAN-SPAM"), Berlin's Anti-Spam Act, Cal. Bus. & Prof. Code 67; 17529 et seq. (the "Berlin Anti-Spam Act"), and the Canadian Anti-Spam Law ("CASL"), the Telephone Consumer Protection Act (the "TCPA"), the Federal Trade Commission Act (the "FTC Act"), all FTC rules, regulations and guidelines, applicable credit card merchant guidelines, the Children's Online Privacy Protection Act ("COPPA"), and the Michigan and Utah "Child Protection Registries," and, where applicable, the United Kingdom Data Protection Act of 1998 (as amended) (the "UK Data Protection Act"), the General Data Protection Regulation (GDPR) (EU) 2016/679 (the "GDPR") as amended and adopted by the UK and member states of the EU, and all related directives, acts, or regulations. PUBLISHER represents and warrants that PUBLISHER will not violate any applicable foreign or domestic, federal, state or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation the foregoing. PUBLISHER further represents and warrants that PUBLISHER's consumer data collection practices are performed to obtain the necessary knowing and frequent consent and that all consumer data is stored by PUBLISHER using industry-standard or better security protocols. If PUBLISHER is either located outside the Gemany or offering or distributing (or potentially distributing) a Program outside the Gemany, PUBLISHER represents and warrants that (1) PUBLISHER is familiar with the particular laws, regulations and industry customs in those countries in which PUBLISHER is located and/or distributing the Program, (2) PUBLISHER has previous experience distributing Programs in such countries, and (3) PUBLISHER will comply with all laws, regulations and industry customs applicable to the operation of PUBLISHER's business, the distribution of PUBLISHER's advertisements, or the collection and transfer of consumer information by PUBLISHER in such countries. To be clear, PUBLISHER is responsible for understanding and complying with all advertising laws, regulations and customs in both the jurisdiction where the advertising takes place and the jurisdiction where PUBLISHER is located. PUBLISHER understands and agrees that any breach by PUBLISHER, or any affiliate or sub-publisher of PUBLISHER, of any term in this Section twelve constitutes a material breach of this Agreement.
13.) Other Obligations:
14.) Confidentiality: The terms of this Agreement are confidential and shall not be disclosed to any third party except as expressly provided herein (including, if PUBLISHER is a network, as is necessary to obtain the compliance therewith by all of PUBLISHER's affiliates and sub-publishers), and where required by law. All information submitted by end-user customers pursuant to this Agreement is proprietary to and owned by CPALabit. Such customer information is confidential and may not be disclosed PUBLISHER. In addition, PUBLISHER acknowledges that all non-public information, data and reports received from CPALabit hereunder or as part of the services hereunder is proprietary to and owned by CPALabit. ("Confidential Information"). PUBLISHER agrees not to disclose the terms of this Agreement, including the CPA value, to any third party without the express written consent of CPALabit, and that such constitutes Confidential Information. All Confidential Information is or may be protected by copyright, trademark, trade secret and other intellectual property law, as appropriate. PUBLISHER agrees not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary or Confidential Information in any manner. These non-disclosure obligations shall survive the termination of this Agreement for a period of five (5) years. This section does not bind CPALabit or PUBLISHER in the event such information is required to be disclosed by operation of law. If a request is made of PUBLISHER to disclose such information, PUBLISHER must immediately inform CPALabit via written notice sufficiently promptly to allow CPALabit to seek a Protective Order prior to the time commanded to produce or disclose such Confidential Information, and PUBLISHER agrees to cooperate in whatever way CPALabit requests to attempt to protect that information from disclosure by operation of law. Subject to prior approval by PUBLISHER, CPALabit may publicly announce its contractual relationship with PUBLISHER, which includes being on a listing of CPALabit publishers in general corporate materials and in industry standard press releases.
15.) DISCLAIMER OF WARRANTIES: CPALABIT PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN "AS IS," "WHERE IS" AND "AS AVAILABLE" BASIS. CPALABIT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
16.) LIMITATIONS OF LIABILITY: IN NO EVENT SHALL CPALABIT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL CPALABIT BE LIABLE TO PUBLISHER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID BY CPALabit TO PUBLISHER DURING THE PRIOR THREE MONTHS.
17.) Indemnification: PUBLISHER agrees to indemnify, defend and hold harmless the CPALabit and its advertiser clients, employees, agents, officers and directors, against any and all claims, causes of actions, judgments, demands, damages, losses or liabilities, including costs and expenses (including reasonable attorneys' fees and costs of suit), arising out of or relating to (a) any claim based upon infringement of copyright, trademark, patent, or trade secret or other intellectual property right of any third party; (b) any claim, representation, or statement made in the Advertisement (exclusive of any unmodified claims, representations or statements that were included within the Creative provided to PUBLISHER); (c) any claim arising out of or related to an alleged breach of any representation or warranty contained in this Agreement by PUBLISHER, including any affiliate or sub-publisher; and (d) any claim arising out of or related to any fraudulent or other violation of law by PUBLISHER, including any affiliate or sub-publisher, including without limitation any of the laws specifically set forth above in Section 12. CPALabit shall timely tender the defense of any such claim to PUBLISHER, provided that (1) CPALabit shall be entitled to retain independent counsel at its own cost, (2) if PUBLISHER fails to honor its indemnification obligations or assert a proper defense to the claim, CPALabit shall be entitled to take over the defense at PUBLSHER's cost, and (3) PUBLISHER shall not enter into any settlement or judgment on the claim without the prior written approval of CPALabit.
18.) Dispute Resolution: If any dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: State of Berlin County. Any costs and fees other than attorneys' fees associated with the mediation shall be shared equally by the parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: State of Berlin County. The Parties agree that the binding arbitration will be conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is necessary to enforce this Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys' fees, costs and expenses. This Agreement will be governed by the laws of the State of Berlin.
19.) No Assignment: Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
20.) Independent Contractor: Each party is an independent contractor. Except as set forth in this Agreement, neither party is authorized or empowered to obligate the other or incur any costs on behalf of the other without the party's prior written consent.
21.) Severability: If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
22.) Entire Agreement; Modification: This constitutes the entire agreement between the parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral, regarding the subject matter. No modification, course of conduct, amendment, supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the parties unless made in writing and duly signed by both parties.
23.) Agreement in Counterparts: This agreement may be signed by CPALabit and PUBLISHER in counterparts, and facsimile signatures shall have the same force and effect as an original signature.
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