1. Services. 562 Media, Inc. will make commercially reasonable efforts to provide to Client the services set forth in this Section
a. Arrange for the placement of advertisements, maintenance of current programs and promote the marketing of the products and services offered by Client (“Products”) via online and offline distribution channels owned and/or operated by various entities with whom 562 Media, Inc. has contracted (collectively, “Distribution Partners”) which may include Web sites, email lists, desktop applications, search engines, search directories, search optimization services, print media, radio, television and wireless services that 562 Media, Inc. or any Distribution Partner may otherwise develop from time to time and manage the relationships with and payments to Distribution Partners
b. In regards to Pay Per Click Programs: A unique visitor is defined as a visitor with a unique IP address. The visitor is counted when he or she clicks on a link that Client has created specifically to generate qualified traffic to the clients website. All SEO submissions will be based on pre-approved keywords directly relevant to your product or service.
c. In regards to Lead Generation Programs: Leads will be generated in accordance with client requirements for filters of geography, demographics or additional criteria to be determined on a case by case basis. Return policies will be defined on a case by case basis and will be detailed on Client Insertion Order. The client will be required to provide documentation of problematic leads.
d. In regards to Pay Per Call Programs: Calls will be generated in accordance with client requirements for filters of geography, demographics or additional criteria to be determined on a case by case basis. Valid call criteria will be defined on a case by case basis and will be detailed in Client Insertion Order. The client will be required to provide documentation of problematic calls.
2. Payment for Services.
a. Client agrees to pay 562 Media, Inc. fees as outlined in the Client Insertion Order. If terms are granted, payments are due within seven (7) days following the receipt of an invoice from 562 Media, Inc. setting forth all Fees earned by 562 Media, Inc. during the prior month. If payment is received after 15 days of invoice, 562 Media, Inc. retains the right to cancel client’s contracts and/or affix a 1.75% premium charge per month on balance due until total payment is received. All information received in connection with such invoice shall be deemed “Confidential Information” in accordance with Section 6 of this Agreement. Each party shall maintain records of all activities subject to payments pursuant to this Agreement for a period of at least two years following termination or expiration of the term of this Agreement. Client shall permit a representative of 562 Media, Inc. to have access, not more than once a year and during normal business hours, to the records and books of account which relate solely to this Agreement for the purpose of determining whether the appropriate Fees have been paid.
3. Term; Termination.
a. This Agreement shall commence upon signing until termination as provided below.
b. Notwithstanding the above, either party may terminate this Agreement for any reason upon thirty (30) days prior written notice to the other party unless otherwise noted in the Client Insertion Order. Upon the expiration or earlier termination of this Agreement, Client agrees to pay to 562 Media, Inc. all amounts payable hereunder, including all Fees which would have been due under this Agreement. If a client is in a late pay situation, 562 Media, Inc. may elect to terminate current running programs immediately and without notice. The rights and obligations contained in Sections 3(b), 4(c), 5, 6, 7 and 8 of this Agreement shall survive the termination or expiration of this Agreement.
4. Responsibilities of Client.
a. Client shall be solely responsible for operating, maintaining and managing the content of the Client Site, Telephone Lines, Call Centers and other technology necessary.
b. Client shall be solely responsible for all aspects of the relationship with Qualified Customers, including without limitation: (i) accepting and processing Purchases; (ii) all commitments or obligations resulting from each completed Purchase; (iii) determining all customer service, warranty and operational policies; (iv) ensuring that each Purchase is made and used in conformance with all applicable laws. Client shall provide 562 Media, Inc. with sales and marketing information applicable to the Products as is available from time to time in order to assist 562 Media, Inc. in establishing relationships with Distribution Partners. Client shall not be liable to 562 Media, Inc. in the event that Client encounters technical or other difficulties that may periodically hinder the operation of the Client Site.
c. During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement, Client may not directly or indirectly contract with distribution partners which have been utilized in Client campaigns. In the event client contracts with any distribution partner during the year following termination, Client will be responsible for payment to 562 Media, Inc. in the amount of 20% of all invoices during this period.
5. Limitation of Liability; Indemnification.
a. Client agrees to indemnify, defend, and hold harmless 562 Media, Inc. and each Distribution Partner (and their respective officers, directors, employees, shareholders and agents) from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) directly or indirectly arising from or relating to (i) any breach by Client of this Agreement; (ii) the operation or content of the Client Site or the Offers; (iii) the alleged violation or infringement of any Intellectual Property (as herein defined) or privacy rights of any third-party as a result of any materials provided by Client to 562 Media, Inc. and each Distribution Partner; (iv) the sale or use of Client’s Products; or (v) the sale or use of any information collected pursuant to the Registration of any person or entity. Client acknowledges that each Distribution Partner which displays or causes to be displayed Client’s Offer is an intended third party beneficiary of these indemnities. Client agrees that it will not assert a defense based upon lack of privity against any Distribution Partner seeking to enforce this provision.
b. 562 Media, Inc. agrees to indemnify, defend, and hold harmless Client, its officers, directors, employees, shareholders and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) directly or indirectly arising from or relating to any breach of this Agreement by 562 Media, Inc..
c. Neither Client, 562 Media, Inc. nor any Distribution Partner shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses of any kind arising out of this Agreement or its termination; however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Neither Client, 562 Media, Inc. nor any Distribution Partner shall be liable to one another for lost or imputed profits arising out of this Agreement or its termination. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from 562 Media, Inc.’s willful misconduct or recklessness, 562 Media, Inc.’s liability hereunder shall not exceed amounts paid by Client under Section 2. The limitations set forth in this Section 5(c) shall not, however, apply to a breach of Section 6 hereof. 562 Media, Inc. shall not be liable to Client or any other person or entity for (i) any information provided on 562 Media, Inc.’s web site; (ii) any information provided to any person or entity by any Distribution Partner or any illegal, inappropriate act or act of misconduct on the part of any Distribution Partner; (iii) system downtime of 562 Media, Inc. or any Distribution Partner; (iv) unauthorized access to, or alteration, theft or destruction of the Client Site, data files or systems or programs through accident, fraudulent means or device; or (v) any claim attributable to errors, omissions or other inaccuracies in the Services.
6. Confidentiality. In connection with entering into this Agreement, each party may receive or have access to commercially valuable technical and non‑technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning such party’s vendors, and such party’s contemplated plans, strategies and prospects (“Confidential Information”). Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information of the disclosing party and will similarly bind its employees in writing. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
7. Trademarks and Proprietary Rights.
a. Client hereby grants to 562 Media, Inc. during the Term of this Agreement, a limited, non-exclusive, non-transferable, revocable license to use and sublicense Client’s trade names, logos, trademarks, service marks, trade dress, Internet domain names, similar proprietary marks and copyrights as is reasonably necessary for 562 Media, Inc. to perform its obligations under this Agreement and for use in 562 Media, Inc.’s promotional materials.
b. Neither party shall use the other party’s Licensed Property in a manner that disparages the other party or its products or services, or portrays the other party or its products or services in a false, competitively adverse or poor light (“Prohibited Uses”). Each party shall comply with the other party’s requests as to the use of the other party’s Licensed Property and will avoid any action that diminishes the value of such marks.
c. Subject to the limited licenses granted to 562 Media, Inc. and Client under Section 7(a), each party owns and shall retain all right, title and interest in its tradenames, logos, trademarks, servicemarks, tradedress, Internet domain names, copyrights, patents, trade secrets, know how, and proprietary technology, including, without limitation, those tradenames, logos, trademarks, service marks, trade dress, copyrights, patents, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future (“Intellectual Property”). Except as provided for in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works, or otherwise use any of the Intellectual Property of the other party without the express written consent of such party. All data that is collected by 562 Media, Inc. while performing the Services is the property of 562 Media, Inc.. Only data that is collected by 562 Media, Inc. while performing the Services that can specifically identify Client or Client’s Qualified Customers shall belong to Client and will be treated as Confidential Information. 562 Media, Inc. currently uses and plans to continue to use all data that it collects in an aggregate manner, such as non-personal or company identifiable demographic information, for the purpose of assisting 562 Media, Inc. in providing its services to its customers.
8. General Provisions
a. Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder, (ii) nothing contained in this Agreement or required by such party’s performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including, without limitation, obscenity, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe upon or violate the Intellectual Property or privacy rights of any third party. Client acknowledges that neither 562 Media, Inc. nor the Distribution Partners advocate or endorse the purchase or the use of Products, nor does 562 Media, Inc. or any Distribution Partner guaranty the quality, fitness, or results of Products or their compliance with any law or regulation. Client further acknowledges that 562 Media, Inc. and the Distribution Partners have no control over the selection of goods or services offered for sale or over their quality or content. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8(A), NEITHER CLIENT, 562 MEDIA, INC. NOR ANY DISTRIBUTION PARTNER MAKE, AND EACH SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR, PURPOSE, REGARDING PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT.
b. Governing Law. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of law principles.
c. Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within ten (10) working days of such event or occurrence.
d. Relationship. The relationship of 562 Media, Inc. and Client established pursuant to this Agreement is that of independent contractors. The parties acknowledge, that this Agreement sets forth a non-exclusive relationship between the parties.
e. Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service, to the address of the respective party below:
To 562 Media, Inc. at:
5318 E 2nd St. # 554
Long Beach, CA 90803
f. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
g. Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. No change, amendment or modification of any provision of this Agreement shall be valid unless in writing signed by both parties.
h. Performance. Client shall be solely responsible for its own costs and expenses incurred in the performance of its obligations under this Agreement.
i. Construction of Agreement. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.
j. Entire Agreement. This Agreement set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms. By proceeding, you accept all of the terms and conditions outlined above. This agreement may be modified only in writing signed by both parties. The parties agree that this agreement shall be interpreted in accordance to the laws of the state of California. The parties agree that any disputes pursuant to this agreement and/or the relationship between the parties created pursuant to this agreement shall be resolved in the courts of the state of California.